Direct Examination of the Expert Witness: 10

Basic Rules

It perhaps sounds surprising, but the most difficult skill to master in trial advocacy may be
conducting good direct examination of a witness, particularly an expert witness. The
conventional thinking, no doubt, is that a trial lawyer's "real" skill is measured by his ability to
conduct damaging cross-examination or persuasive closing argument. Those phases of trial
performance, however, are arguably easier for the lawyer to conduct for one simple reason: The
lawyer is less "shackled" by courtroom rules or mechanics. For example, during cross-
examination, the lawyer is entitled to use leading questions, a huge advantage. Leading
questions, as the term suggests, permit the lawyer to "lead" the witness where he wants to go. On
direct examination, however, the prohibition on leading questions puts the lawyer in the position
where the success of the examination is much more dependent upon the ability of the individual
witness to listen, understand and respond to questions. During closing argument, the lawyer is
even less "shackled" than he is during cross-examination, for here he does not even have to
employ a question-and-answer format to convey information to the jury, but instead can speak
directly to them. In short, the lawyer is most in control during closing argument, and to a
somewhat lesser extent on cross-examination, and he is least in control when conducting direct
examination.

The Rules encompassed in these materials will make suggestions for conducting successful
direct examination. Two common themes will run throughout most of the Rules: First, try to
maintain as much control as possible during the examination, and second, make the testimony
understandable to the average juror. This second theme is particularly important to the overall
outcome of the case. While the trial of any case comes down to a matter of persuasion, i.e., each
side trying to convince the jury that its position is correct, one cannot overlook the fact that the
first step in the process of persuasion is comprehension. In other words, a jury must
first understand before they can believe. For the expert witness that means that if the jurors do
not first comprehend his opinion, they will never reach the point of believing it; instead they will
simply reject it. Thus, many of these Rules will deal with techniques that enhance juror
comprehension.

1. DON'T "SCRIPT" YOUR QUESTIONS, BUT USE AN OUTLINE INSTEAD

As you sit down to begin planning your expert's direct testimony, do not begin by scripting your
questions! Instead, you should start by preparing a rough outline for the testimony. Work with
several drafts of the outline until you have a good, "tight" final version.

Why is an outline preferred to a "script?" Here are some reasons. First, it will subconsciously
cause you to focus your attention on the paper containing the script rather than the witness on the
stand. You need to be focused on the witness, not a yellow legal pad! Second, a script inhibits
the natural rhythm that you should seek to develop with the witness. During good direct
examination, the lawyer engages the witness in conversation. You strive to create a nice rhythm
to the questioning, with good back-and-forth between the two of you. A script robs the lawyer of
that rhythm and causes you to think about the next question on your list as opposed to listening
to the witness and asking the obvious follow-up question to the comment he just made. Finally,
excessive reliance on a script creates a bad impression with the jury. It not only takes some of the
"spark" out of the direct examination, but it suggests to the jury that you either lack confidence in
your case or do not know it well enough to avoid using the script.

One final point on the outline. Have it available to you while the witness is on the stand, but keep
your eyes and ears focused on the witness and only glance periodically at your outline.
Following below are three examples of the format and type of information to include in your
outline. Each outline deals with a different type of expert witness.

THE TREATING PHYSICIAN

A. Personal Background And Qualifications

1. Name, business address, etc.

2. Brief description of educational history
3. Medical specialty and board certification, where applicable
4. Mention noteworthy publications, teaching appointments, professional positions, etc.

B. First Contact With Plaintiff

1. Date of first visit to doctor

2. History of accident given to doctor
3. Bodily injuries complained of
4. Anatomy background -- At this point before the doctor proceeds further, it may be
helpful to digress momentarily and provide the jury with a little medical background. For
example, if the plaintiff comes to the physician complaining of a back injury, it may be
useful to describe the anatomy of the spine.
5. Describe physical exam performed by physician -- Be sure to stress any "abnormal"
findings and have physician explain significance thereof
6. Diagnosis -- Have doctor explain his conclusion -- Also, be prepared to provide necessary
medical definitions to jury
7. Causation -- If causation is relatively simple and self-evident, have doctor relate injury to
the accident after explaining diagnosis. If causation is more complex, the subject may be
worthy of a separate segment unto itself.
 8. Treatment Rendered -- Have physician describe treatment rendered and its purpose vis-a-
vis plaintiff's problems

C. Causation

1. As noted above, if causation is particularly complicated, the subject may be worthy of a

segment of its own. In that case, there usually is a more lengthy set of facts and/or
assumptions which underlie the doctor's opinion on causation. Therefore, one must lay
out a neat chronology for the physician and then ask the ultimate causation question.
2. Use simple direct language in framing opinion question, e.g., "Doctor, assuming those
facts to be true, did the accident cause the plaintiff's injury?"
3. If you have several opinion questions which must be asked on causation, don't feel
compelled to start each such question with "Doctor, in your opinion to a reasonable
degree of medical certainty ..." This can become cumbersome. Just ask the doctor at the
outset if all of his opinions are stated within a reasonable degree of medical certainty.

D. Hospitalization

1. If the plaintiff has been placed in the hospital for treatment, that event is generally worthy
of a separate segment in the testimony outline.
2. In reviewing hospitalization with the physician, be sure to point out important diagnostic
tests, operative procedures, etc.
3. Also, from a clinical standpoint, it may be helpful to refer to nurses' notes and/or
medication sheets (if pain medications were used) to highlight evidence of pain and
suffering.

E. Follow-Up Office Visits

1. Generally, one should not review each and every office visit -- too boring for the jury.
2. Instead, have doctor indicate how long he followed the patient and at what intervals.
3. Have doctor describe in general terms the plaintiff's course during that time, i.e., did the
plaintiff generally get better, worse, or stay the same?
4. Describe course of treatment in general terms including medications or other modalities
employed.

F. Proof Of Disability

1. Establish the length of time that the plaintiff was off work.
2. If not self-evident, describe the physical requirements of plaintiff's job for physician.
3. Ask for the physician's opinion on disability, e.g., "Doctor, in your opinion is it medically
advisable for the plaintiff to engage in that sort of work?"
4. Sometimes it is wise to avoid a question such as "Doctor, is the plaintiff physically able
to do his job?" Whether in theory he is able to do it is different from whether the doctor
thinks he should do it.
5. What risks would the plaintiff face by working?
G. Prognosis

1. Ask the doctor what the future holds for the plaintiff in terms of continuing complaints of
pain, limitation of function and motion, etc. Will they remain unchanged?
2. Establish the impact of continuing problems on future employability.
3. Remember that "prognosis" testimony need not be stated within the proverbial
"reasonable degree of medical certainty." See Hamil v. Bashline, 392 A.2d 1280 at
footnote 10.

LIABILITY EXPERT IN DEFECTIVE PRODUCT CASE

A. Personal Background And Qualifications

1. Name, business address, etc.

2. Brief description of educational history
3. Medical specialty and board certification where applicable
4. Mention noteworthy publications, teaching appointments, professional positions, etc.

B. Review of Case History

1. Set out various materials reviewed by expert including depositions, interrogatories,

documents, etc. Use of leading questions may facilitate examination here and should be
permitted.
2. Review the facts surrounding the accident. Some experts "know the file" better than
others. In those instances where you are leery of having the expert relate in narrative form
what happened at the time of the accident, an alternative technique might be employed.

For example, you may ask the expert a series of questions, each preceded by "Did your review of
the record indicate that x happened here?" or "I want you to assume that x happened here." (See
Rule 8 for further discussion of this point.)

C. Cause of Accident

1. In many product cases, the first order of business with the expert is to establish the cause
of the accident, i.e., what it is about the product that caused the accident to occur.
2. To the extent an explanation of the mechanism of injury is complicated, appropriate
technical background should first be provided to the jury. Use of demonstrative evidence
may be of assistance as well. (See Rules 6 and 7)

D. Opinion Regarding Defect

1. Assuming the expert has isolated the cause of the accident, it is incumbent to establish
that such cause was related to a defect in the product.
2. Therefore, ask the expert if such a defect existed, and if so, to describe it in general.
3. Have expert explain why he deems the condition to be a "defect." If governmental or
institutional standards have been violated, they should be referred to at this time.
 4. In complicated cases, break the opinion down into its various components.
5. Indicate what should have been done differently to correct the defect.

E. Conclusion

1. Review the nature of the defect with the expert.

2. Show how the defect caused the accident.
3. Show how the purported changes would have avoided accident.

LIABILITY EXPERT IN MEDICAL MALPRACTICE CASE

A. Personal Background And Qualifications

1. Name, business address, etc.

2. Brief description of educational history
3. Medical specialty and board certification, where applicable
4. Mention noteworthy publications, teaching appointments, professional positions, etc.

B. Anatomy Background

1. Oftentimes in a malpractice case, it is necessary to provide the jury with medical

background even before reviewing the case history on a particular patient.
2. If so, have the doctor explain the involved body parts in simple terms, perhaps enhancing
discussion with the use of models or diagrams.

C. Review of Case History

1. Take the doctor through a chronology of the patient's medical care as rendered by the
defendant.
2. Provide some "help" to the physician in setting out the chronology by using quasi-leading
questions, e.g., "At some point, doctor, did the plaintiff undergo surgery to remove the
stomach?" or "Does the hospital chart indicate that on May 1, 1986, defendant removed
the plaintiff's stomach?"
3. These questions should not be objected to since by and large the "facts of treatment" (as
opposed to opinions and diagnoses) as contained within the hospital chart fit within the
business records exception to the hearsay rule and, therefore, may generally be read
directly into the record.
4. Go through the patient's entire relevant period of treatment before asking the doctor to
express an opinion. In other words, don't "jump the gun" on the opinion questions until
you have first set out what the defendant did in this particular case.

D. Statement of Opinion

1. After setting forth the relevant treatment rendered by the defendant, ask the physician
expert if he arrived at an opinion regarding the quality of care rendered by the defendant.
 2. Ask the doctor at the outset if all of the opinions he will express are stated to a reasonable
degree of medical certainty. This will avoid your having to incorporate that "magic
language" in each subsequent question.
3. Have the physician expert describe the breach of the standards of good practice
committed by the defendant. In so doing, one should generally avoid an open ended
question to the expert such as "How did the doctor's care deviate from the accepted
standards of good practice?"
4. Instead, it seems advisable to ask a more pointed question such as "Doctor, in your
opinion was the defendant's failure to recognize the post-operative complication until
nearly four days after the stomach surgery consistent with accepted standards of good
practice?"
5. Have the physician expert explain the basis of the opinion, i.e., why the defendant's care
was inappropriate, and what the appropriate method of care would have been.

E. Causation

1. Establish that the breach from accepted standards of good practice is what, in fact, caused
harm to the plaintiff.
2. Note that in certain cases it may only be necessary to prove that the defendant's breach
"increased the risk of harm" to the plaintiff.

If so, this may be done by asking, "Doctor, if the defendant had rendered the appropriate care as
described by you, would the plaintiff have had a greater chance of survival in this case?"

F. Conclusion

1. Review the cause of the plaintiff's harm.

2. Repeat how the cause was attributable to the substandard care rendered by the defendant.
3. Establish how appropriate care would have prevented harm to the plaintiff.

2. PRESENT QUALIFICATIONS IN AN INTERESTING MANNER

Almost without fail, the introductory portions of your outline for any expert witness will be
devoted to drawing out his/her qualifications. While there is some debate about the importance
of qualifications --- there are those who believe good credentials are quite important to a jury,
and there are those who believe jurors soon forget qualifications and focus on the substance of
the expert's opinion --- the expert's qualifications are certainly going to be established, so they
may as well be presented in a manner that will not put the jury to sleep. Prior to examining the
witness, spend some time looking over the curriculum vitae. Try to pick out some interesting
award, achievement or position held by the expert to bring to the jury's attention.

EXAMPLE:

Q. Doctor, I see from your resume that, during your first year of medical school, you won the
James T. Allan Award. What is the James T. Allan Award?
A. The James T. Allan Award is an award given to a first-year medical student for outstanding
achievement in research.

Q. Who do you compete against for this award?

A. All of the other students in the first-year medical class.

Q. How many students were there in your first-year medical class?

A. Roughly 200.

Q. What did you have to do in the competition?

A. You had to pick a medical issue of your choice and collect all of the current research on that
topic and analyze it. In doing the analysis, you had to comment upon things such as the scientific
reliability of the conclusions in the research and offer a viewpoint on what additional studies the
medical profession should do in order to improve healthcare in that area.

Q. Who judges the performance of the medical students?

A. There is a five-member committee made up of professors from the medical school.

Q. In winning the James T. Allan Award, would I be correct in assuming that you finished first in
the competition among the other 200 students?

A. Yes. As I said, the Allan Award is given for the outstanding performance by a first-year
medical student.

Expert witnesses often have faculty positions at universities. Again, try to elicit that fact in an
interesting fashion.

EXAMPLE:

Q. Dr. James, do you do consulting work on a full-time basis?

A. No. It really occupies a relatively small percentage of my time.

Q. What do you do on a full-time basis?

A. I am a full-tenured professor of chemical engineering at the University of Pennsylvania.

Q. What do you do in that capacity?

A. Very simply, I teach engineering students who are working toward a degree in chemical
engineering.
Q. What sorts of courses do you teach?

A. I have taught probably 30-35 different courses during my career. These courses cover a wide
range of subjects in diverse areas such as thermal dynamics, materials composition, properties
of fluids, and many, many more.

Q. What do you have to do to become a tenured professor of chemical engineering?

A. Without going into a lot of detail, which I am sure is of little interest to the jury, you basically
have to prove to the satisfaction of a committee of your peers that you are a good teacher and a
credible researcher.

Expert witnesses often include a long list of publications on their curriculum vitae. You
obviously do not have time during direct examination to go through each publication. However,
if there are particular articles that the expert has written that have direct application to the issue
at hand, it is obviously helpful to mention them. (Just a note of caution: Be certain ahead of time
that there is nothing in the article that can be used to impeach the opinion that the expert is going
to offer on direct.) If there is no particular work that you want to highlight, but instead want to
merely establish the breadth of the expert's publications, you may consider a series of questions
such as the following.

EXAMPLE:

Q. Dr. Simon, I note from your resume that you have written numerous articles in the area of
orthopedic surgery, is that correct?

AYes.

Q. According to your bibliography, there are some 150 of these articles?

A. Actually, I have two more that have been published since that bibliography was printed, but
yes, 150 is a fair approximation.

Q. Where are these articles published?

A. In various medical journals.

Q. Are these local medical journals or are they circulated nationally?

A. Actually, they are circulated internationally to physicians and medical libraries throughout
the world.

Q. To your knowledge, do these journals typically employ editorial boards to "screen" the
quality of the articles before they will publish them?

A. Oh, yes. That is standard operating procedure for the good journals.
Q. Have you ever had an article rejected for publication?

A. No, sir.

Q. I also note from your resume that you have written parts of some ten medical textbooks, is
that correct?

A. Yes, I have authored or co-authored chapters in a variety of textbooks on orthopedic surgery.

NOTE: At this point, it would probably be effective to display some of those books for the jury,
give the title of the book, and ask the doctor what chapters he wrote in the book. Even more so
than most books, medical textbooks look impressive in front of a jury, and it can certainly boost
your witness's esteem by associating him/her with a textbook.

3. PROVIDE APPROPRIATE BACKGROUND BEFORE DISCUSSING THE EXPERT'S

OPINION

The focal point of any expert's testimony is obviously the opinion that he/she is going to offer
and the basis for that opinion. It is important, therefore, that the attorney conducting the direct
examination provide the proper "set up" or prelude for the expert's opinion. Generally, this
means you should provide any necessary technical or factual background before you start to
question the expert about his/her conclusions.

There are two principle reasons why it is important to provide the appropriate background before
discussing an expert's opinions or conclusions. First, and most importantly, the jurors will be in a
better position to understand what the expert is saying if they first have an explanation of the
scientific concepts and terms that will apply to the case. (As noted in the Introduction, the first
step in the process of persuasion is comprehension.) Second, if you provide this background
information before the expert gets into discussing the opinion in this particular case, you will
avoid having to constantly interrupt or take "off track" the expert in order to explain terms or
concepts that have just been mentioned. By getting all of this explanation out of the way first,
your presentation of the expert's opinion will be much less cluttered and disjointed, all of which
again helps the jury in understanding what the expert is saying.

NOTE: As used in this context, "interrupt" refers to the expert having to digress from a
discussion of the opinion to go back and establish general facts upon which the opinion is based.
Thus, by encouraging you to avoid "interrupting" the expert, it is not meant to suggest that you
have the expert use long narrative answers. In fact, the contrary is preferable, and in that regard,
see Rule 9 concerning the advantages of using short precise questions.

For example, here is an illustration of some of the background information that may be elicited
from a medical expert in a case involving a patient who collapses and dies while undergoing a
treadmill test:
Q. Doctor, before we get into a discussion of Mr. Stein's stress test in which he collapsed, I
wonder if you could take a few minutes and explain a little of the cardiac terminology and
concepts you will be using throughout your testimony.

A. I will be happy to do so.

Q. First of all, could you explain just in very simple terms what is meant by coronary artery
disease?

A. Coronary artery disease refers to the build up of cholesterol and other fats within an artery
which causes that artery to narrow.

Q. What happens as a result of the narrowing of that coronary artery?

A. There is a decrease of blood supply to the areas of the heart muscle serviced by that
particular artery, and since blood is what carries oxygen, a narrowing in these arteries
eventually means that less oxygen is going to get through to the heart.

Q. Is there a medical term that is used to refer to a decrease in oxygen supplied to the heart
muscle?

A. Yes, the term is cardiac ischemia.

Q. How does a treadmill test relate to the concept of ischemia?

A. A treadmill test is used to determine if a patient is suffering from cardiac ischemia.

Q. What do you mean?

A. Well, the treadmill test requires a person to exercise at increasingly vigorous levels. The more
vigorously you exercise, the more oxygen your heart requires. Most people with coronary artery
disease can tolerate sedentary activities without any deficiency in their oxygen supply. However,
as their activity becomes more vigorous and their hearts demand increasing levels of oxygen,
they may not be able to satisfy that need. If so, we say they have cardiac ischemia.

Q. How does the treadmill determine if someone has cardiac ischemia?

A. While the person is exercising on the treadmill, they are connected to a monitor which prints
out a graph containing all sorts of information about what is going on with the heart at any
given moment. One of the parts of that graph is called the ST segment. If the heart gets to a point
where it is not getting enough oxygen, this ST segment begins to go in a downward direction on
the graph.

Q. Is there a physician or technician present during the treadmill test?

A. Absolutely.
Q. Are they able to see this graph that is being printed out?

A. Yes.

Q. If there is a decrease or depression in this ST segment, is that something of significance for

them to note?

A. Absolutely. If the ST segment begins to depress or go down, that means that the patient's heart
is experiencing some ischemia, in other words, it is not getting enough oxygen to support the
level of activity being performed.

Q. If ST depression is significant, what should the physician or technician do?

A. Stop the test.

Q. Why?

A. Because if the patient is required to keep exercising when they are not getting enough oxygen,
the ischemia can get even worse to the point that it progresses to a myocardial infarction.

Q. What is a myocardial infarction?

A. Myocardium refers to the muscle of the heart. Infarction means death of tissue. Therefore,
myocardial infarction refers to a death of muscle tissue.

Q. How does that relate to ischemia?

A. If you remember from what we said before, ischemia means lack of oxygen supply to the heart
muscle. If the ischemia gets so bad that virtually no oxygen is getting through, then eventually
the muscle will infarct or die. When the heart muscle infarcts, the result is commonly referred to
as a heart attack.

The previous example dealt primarily with explaining certain concepts and defining terms.
Sometimes the background provided for a medical expert's testimony consists of an explanation
of the anatomy that is critical to the case. For example, before having a physician testify about
how a particular cardiac bypass surgery was performed, the lawyer will first want to spend some
time explaining the various chambers of the heart, their functions, and the vessels that run
through them. As we know from Rule 6, the lawyer would be wise to use a diagram of the heart
to accompany this part of the testimony.

In addition to providing technical background, in some cases it is necessary to provide the factual
background in order to properly "set up" the expert's opinion. In these instances, the background
is being provided not for the purpose of explaining difficult terms, but rather for the second
reason cited above, namely, to avoid constantly interrupting the expert to go back and establish
facts that should have been established earlier. For example, assume that you have a case where
an expert is going to reconstruct the speed of two vehicles involved in an automobile accident. In
so doing, you know that, among other things, the expert is going to be relying on the layout of
the roadway and a few landmarks along the roadway. (Obviously, he/she is going to be relying
on many other things as well including skid marks, resting point of vehicles, etc.) Here is an
example of some factual background you may elicit before discussing any of the facts pertinent
to this case.

EXAMPLE

Q. Dr. Wise, did you visit the scene of this accident?

A. Yes.

Q. How many lanes of travel are there on Salter Road?

A. One lane in each direction.

Q. What is the roadway surface?

A. It is a macadam surface.

Q. At some point along the berm for the eastbound lane, did you find a mailbox bearing the name
"McAllister?"

A. Yes. NOTE: You are establishing this fact because later on, in offering the opinion, the expert
is going to be relying upon the location of this mailbox to establish some point.

Q. In the area where the mailbox is located, what is the configuration and terrain of the road?

A. For approximately mile before you get to the McAllister mailbox, the road is straight and
flat. For the next mile beyond the mailbox, the road is still flat, but there is a slight upgrade.

Q. While you were at the scene, did you take note of the intersection of Salter Road and Atlas
Road?

A. Yes.

Q. Did you measure the distance from the McAllister mailbox to the center of that intersection?

A. Yes, I did. It was a distance of 684 feet.

By setting out this background ahead of time, you avoid the situation where the expert starts to
offer his opinion and makes reference to the mailbox, and you have to interrupt him and say
"Excuse me Dr. Wise, did you mention a mailbox? Where is that mailbox located? How far is
that mailbox from the intersection of Salter Road and Atlas?, etc."
4. USE SIMPLE LANGUAGE, ANALOGIES, AND/OR EXAMPLES TO EXPLAIN
TECHNICAL TERMS OR CONCEPTS

One of the real dangers in presenting expert testimony is that the lawyer or the expert will speak
over the jurors' heads. If you present expert testimony that the jury simply does not understand
because of the language being employed, the expert's opinion is not going to be accepted no
matter how well-founded it may be.

Thus, as you go through the background for the expert's testimony as suggested in Rule 3 or
when discussing the opinions, it is incumbent upon the lawyer to use everyday language, not
legalese or the jargon of the scientific discipline involved in the case. It will probably be even
more difficult to get your expert to refrain from using complex language, for the expert is used to
speaking to contemporaries in those terms and is less sensitive to the jury's predicament than the
lawyer. What do you do with the expert? The first thing to do is politely, yet firmly, impress
upon him/her in your pre-trial discussions the importance of keeping the language simple.
Second, during the presentation of the testimony itself, make liberal use of simple language
synonyms for more complex terms and/or use common examples or analogies to illustrate
something.

For example, notice how this lawyer uses these techniques to explain what a herniated disc is.

EXAMPLE

Q. Doctor, what are the components of the spinal column?

A. The spinal column is made up of a series of bones or vertebral bodies stacked on top of one
another and in between each bone is a disc.

Q. By the way, when you say vertebral bodies, is that just another word for the bony part of the
spinal column?

A. Yes. If you run your hand down the center of your back, those bony ridges or lumps that you
feel are part of the vertebral bodies.

Q. What are the discs made of?

A. They are composed of a relatively hard outer cartilage shell known as the annulus fibrosis
and a much softer gelatinous center known as the nucleus pulposus.

Q. What is the purpose of the discs?

A. They permit flexion and extension of the spine, and they also ease vertical load stresses on the
spine.

Q. When you say that the discs permit flexion and extension, do you mean they permit
us to bend forward and backward?

A. Yes.

Q. And when you say the discs permit our back to tolerate vertical stress loading, do you mean
the discs sort of operate as shock absorbers when, for example, we jump up and down, run, or
just walk?

A. Yes.

Q. What is a herniated disc?

A. A herniated disc refers to a situation in which the annulus fibrosis has degenerated to the
point that the nucleus pulposus extrudes through that outer shell.

Q. Would this be similar to a rubberized tire wearing thin and permitting a part of the inner tube
to bulge out through the tire's shell?

A. Yes, that would be a good example.

Here is another illustration of a lawyer using simple language and analogies to explain heart
bypass surgery.

EXAMPLE

Q. Doctor, what is cardiac bypass surgery?

A. It is a surgery in which we harvest donor "vessels" in order to graft around cardiac vessels
which have lost their patency and thereby re-establish blood flow within the various chambers of
the heart.

Q. When you use the term vessels, do you mean blood vessels?

A. Yes.

Q. When you use the term "patent" do you simply mean clear and unclogged?

A. Yes.

Q. To use a very simple analogy, is this surgery similar to a motorist taking a detour around a
traffic jam?

A. In a sense that is true.

Q. In my simple analogy, would the blood vessels that have lost their patency or become clogged
be analogous to the road that is backed up with traffic?
A. Yes.

Q. And would the donor grafts be analogous to my finding a detour and turning off the main
road?

A. Yes.

Q. Now, does the donor graft or detour eventually reconnect back to the main vessel or highway
at a later point down stream?

A. Yes.

Here is an attorney explaining the scientific term "moment arm" by reference to an easyto-
understand example.

EXAMPLE

Q. Dr. Roman, you just used the term "moment arm." What does that mean?

A. Moment arm refers to the distance between a certain point on an object and its center of
gravity and the resultant physical effects of that distance. As moment arm increases, so does
force.

Q. Can you give us a simple example or demonstration to illustrate that point?

A. Certainly. If you had a pole that was 5 feet long and you wanted to pick it up off the ground,
the easiest place to lift it from would be at its center gravity. In other words, you would grasp the
pole at a distance 2-1/2 feet from either end and lift it up. If, however, you tried to lift the pole by
grasping it at the very end, it would be much harder because the length of the moment arm ---
the distance between your hand and the end of the pole --- is now much greater and the
downward force being exerted throughout that distance is much greater. In effect, what you have
done by moving your hand to the end of the pole is to increase the moment arm.

5. USE SHORT, PRECISE QUESTIONS

In addition to using simple language, the jury's ability to comprehend the expert's testimony will
be greatly enhanced if you employ questions that are both short and precise. Lengthy questions
which incorporate multiple thoughts invite convoluted responses which inevitably cause
something to be lost in the translation. The lawyer is much better off if the lengthy question is
broken down into separate short questions. Additionally, it helps to make the question as precise
as possible, i.e., the less open-ended the better. Precise questions draw attention to the specific
points which you are trying to establish.

There are numerous examples of this technique in the vignettes used to illustrate the other Rules
described in these materials.
6. USE DEMONSTRATIVE EVIDENCE TO EXPLAIN A POINT

There is an old saying that "a picture is worth a thousand words." There is probably no

setting in which that old maxim applies more aptly than the presentation of expert testimony. By
definition, "expert" testimony involves a subject matter which, in the judgment of the court, is
beyond the knowledge of a lay person. Thus, the lawyer needs to do whatever he can to assist the
jury in understanding the expert's testimony. Demonstrative evidence is one of the primary tools
the attorney has at his disposal in that regard. Prior to putting an expert on the stand, the lawyer
should always ask himself whether there is some demonstrative evidence which will assist the
jury in understanding the expert's testimony.

There are, of course, different categories of demonstrative evidence. One category is "real"
evidence such as the actual product which failed in a 402A case. With this sort of evidence,
counsel must be mindful of issues such as authenticity and chain of custody, i.e., you need to be
able to prove that it is, in fact, the actual product involved in the accident, and you need to
establish its condition at various points in time.

Another category of demonstrative evidence is not "real" evidence, but evidence which has been
specially prepared or acquired by one of the parties for the purpose of illustrating something at
trial. Models, photos, diagrams, and anatomical charts would be examples of this type of
demonstrative evidence.

Regardless of the type of demonstrative evidence, it is important that it be presented properly to

the jury if it is to be used to maximum value. Make sure that the item is of sufficient size for the
jury to see. If, by its nature, the object is small, you may consider the use of photo enlargements,
an overhead projector, or newer technology such as a Doar viewer (This is similar to an overhead
projector which projects a "real" image rather than a transparency, i.e., it is just like taking a
picture of an object and projecting it in larger form on a screen or through a video monitor.) In
addition to having an item of evidence which is of sufficient size, you need to be mindful of the
jury's line of vision and make sure it is not obscured. For that reason, it is generally suggested
that, as much as possible, the lawyer should maintain possession and control of the
demonstrative aid rather than putting it in the hands of the expert for an extended period of time.
Experts are often oblivious to the jury's line of vision and, as a result, they may cover up or block
a portion of the evidence while they are talking to the jury. The preferable practice is for the
lawyer to maintain greater control of the evidence and direct the expert's attention to relevant
areas of the item.

Here is an example of a short demonstration being used to illustrate a scientific concept that
explains why planes can fly.

EXAMPLE

Q. Dr. Weller, what are the scientific principles that explain why an airplane is able to fly?

A. The main one is something called Bernoulli's Principle. It is named after a Swiss
scientist, Bernoulli, who lived in the 1800s.

Q. What does Bernoulli's Principle have to do with an airplane flying?

A. Bernoulli's Principle explains the major force involved in flying, that force being "lift."

Q. What exactly is Bernoulli's Principle?

A. While it is rather complicated, in simplest terms, Bernoulli's Principle says that as the speed
of a fluid such as air increases, the pressure exerted by the air decreases.

Q. How does that apply to the flight of airplanes?

A. The spinning of a propeller causes air to be forced back over the wings of the plane. For a
reason that I will explain in a minute, the air that travels over the top of the wing is moving
faster than the air beneath the wing. Because the air beneath the wing is moving at a slower
speed, it is exerting a greater pressure. That greater pressure from beneath the wing pushes up
against the wing and "lifts" the plane into the air.

Q. Why does the air below the wing move more slowly than the air above the wing?

A. Because the top surface of the wing is curved or "cambered" and the lower surface of the
wing is more flat, the air traveling above the wing has to travel a greater distanced than the air
below the wing. In order to cover the greater distance in the same amount of time, the air above
the wing must travel faster than the air flowing on the underside of the wing. Again, the slower
moving air underneath the wing is exerting greater pressure than the faster moving air above the
wing, and this creates the upward force, or lift, which permits the plane to fly.

Q. Can you do a simple demonstration for us which illustrates Bernoulli's Principle?

A. Sure. Let us take a simple strip of paper, say 5 inches long and 1 inch wide. If I hold this piece
of paper between my thumb and index finger, it will lie limply over the rest of my other fingers.
However, as the paper lies on my fingers, notice that it is curved somewhat like the upper
surface of a wing. If I now start to blow over the top of that piece of paper, notice how the strip
of paper now begins to rise off of my fingers. The strip of paper is being "lifted" off my fingers
for the same reason that the wings of an airplane are lifted: There is greater pressure being
exerted below the strip than there is above it. That is a demonstration of Bernoulli's Principle.

Here is an example of a medical diagram being used to explain a herniated disc:

EXAMPLE

Q. Doctor, you explained to us a minute ago what you mean by the term "herniated disc." Would
this diagram, Plaintiff's Exhibit 1, help you in explaining exactly what a herniated disc is?

A. Yes, actually that diagram is quite good.

Q. What does the diagram show?

A. The diagram is divided into two parts. The top part labeled "A" shows a normal disc, whereas
the bottom half of the diagram labeled "B" shows a herniated disc.

Q. Just so that we can orient the jury, can you tell us from what angle this diagram would be
displaying the discs?

A. Yes, this diagram would show us what we would see if we were looking straight down on top
of the discs.

Q. Let us go back to the upper half of the diagram, part A. Tell us what is shown there.

A. We see the two elements of the disc, the annulus fibrosis and the nucleus pulposus, and we
also see the surrounding structures including the vertebral bodies and the nerve roots.

NOTE: At this point, as the doctor is explaining what is depicted in certain areas on the
diagram, either the witness or the attorney should be using a pointer to designate the areas
being discussed.

Q. Is Part A of the diagram showing a normal or abnormal disc?

A. It is a normal disc.

Q. Why can you tell that it is normal?

A. Because if you look here, you can see that the full integrity of the annulus fibrosis has been
maintained and the nucleus pulposus is fully contained within the hard outer shell.

Q. O.K. What is shown in Part B of the diagram?

A. Part B shows a herniated disc. If you compare Part A and Part B there is an obvious
difference. In Part B, you can see where the annulus fibrosis has ruptured or herniated and there
is the nucleus pulposus extruding through that defect.

NOTE: The technique of comparing and/or contrasting two pictures or diagrams is quite useful
when you are trying to illustrate an abnormal condition.

Q. Doctor, this area you pointed out as showing the rupture or herniated disc material, would
that be analogous to the blow-out in a tire we were discussing earlier.

AYes.

Q. What is the significance of the nerve root in Part B of the diagram?

A. The significance is that, as you can see in this part of the diagram, the ruptured disc material
is impinging upon or compressing that nerve root. That explains why the patient has such
excruciating pain with a herniated disc.

7. USE DEMONSTRATIVE EVIDENCE TO PROVE A POINT

In the preceding Rule, we showed how demonstrative evidence is used to illustrate or explain a
point. This Rule goes one step further and urges you to use demonstrative evidence in the form
of an experiment or re-enactment to prove a point.

An expert comes into court with a theory, an opinion, of what happened in the case. He explains
his theory in so many words (hopefully not overly technical words) from the witness stand. But
even if he uses clear and concise language, his opinion is still only that, his opinion. If you can
use an experiment or re-enactment to validate that opinion, you are well on your way to winning
the case.

During your pre-trial preparation, therefore, both you and your expert should discuss whether
there is some way to prove the expert's theory by preparing a re-enactment or demonstration.
Typically, these things will be videotaped prior to trial and played for the jury in the courtroom.
(You should be aware of the case law which, in general, indicates that in order for an out-of-
court re-enactment or demonstration to be admissible it must be performed under circumstances
sufficiently similar to those prevailing at the time of the accident, otherwise its prejudicial impact
outweighs its probative value. See, for example, Ligon v. Middletown Area School District, 584
A.2d 376 (Pa. Cmwlth. 1990); Leonard v. Nichols Homeshield, Inc., 557 A.2d 743 (Pa. Super.
1989).

Let us assume that we have product liability case in which the plaintiff claims that she was
injured by an exploding soft drink bottle. The plaintiff contends that she was unpacking her
groceries in her kitchen and carrying a soft drink bottle from a countertop to her refrigerator
when it suddenly exploded and sprayed shrapnel-like glass fragments into her eye. The bottle
manufacturer defends the case on the ground that the plaintiff is careless and simply dropped the
bottle. Plaintiff's expert says the bottle must have exploded while plaintiff was carrying it,
because if she dropped it to the floor, it would not have sprayed slivers of glass high enough to
reach her eye. Here is a description of a recreation which might be used to validate that opinion.

EXAMPLE

Q. Professor Williams, as I understand your testimony of a few moments ago, you have indicated
that, given the fracture mechanics of this sort of glass, you do not believe that a bottle of this
sort, if it were to fracture upon impact with plaintiff's kitchen floor, could spray silvers of glass
high enough to get into plaintiff's eye. Is that correct?

A. Yes sir, in essence that is my opinion.

Q. Professor Williams, in order to substantiate this opinion, have you performed certain
experiments in your laboratory?
A. Yes sir, I have.

Q. Could you describe in general what those experiments consisted of?

A. Yes. Essentially what I did was this. I constructed a small area of flooring in my laboratory
identical to what I understood the flooring in plaintiff's home to be. By the way, that flooring was
wooden joists supported by a wood sub-floor with 1/4 inch vinyl as the finished surface.

After constructing that small area of floor, I obtained several bottles made from glass of the
identical composition of the bottle involved in this accident. I then utilized a lab assistant who
proceeded to intentionally drop several bottles on the floor. The bottles were controlled in order
to hit the floor just like plaintiff's did. By the use of a radar device, we were then able to chart
the path of each fragment of glass as it shattered and sprayed in different directions. We were
particularly interested in how high above the floor the glass slivers would fly.

If memory serves me correctly, I believe we dropped fifty bottles, and in none of the instances did
glass reach more than three feet above floor level.

Q. Professor Williams, did you videotape the dropping of these various bottles?

A. Yes, I did.

Q. Have you brought that videotape with you today?

A. Yes, I have.

Q. Your Honor, with the court's permission, I would now like to show that videotape to the jury
and have Professor Williams narrate the activity as it is shown.

An experiment is slightly different from a re-enactment. As the word indicates, a reenactment

seeks to recreate what happened at the time of the accident. An experiment is slightly different in
that it does not seek to duplicate the conduct of one of the parties, but seeks to prove a point by
example. Here is an experiment that might be used in an aviation case. Assume that the plaintiff
dies in the crash of a small airplane, and it is subsequently discovered that there was ice in the
fuel line which blocked the flow of fuel, thereby starving the engine to the point of failure.
(NOTE: Airplane fuel tanks, which are housed in the hollow interior of the wings, always have a
certain amount of water in them. Therefore, drains are installed at the low point in the fuel tank
so the pilot can drain the tanks during his pre-flight inspection.) In this case, assume that it is the
plaintiff's theory that because of the poor design of the tank, not all of the water tracks down to
the drain, but instead some of it becomes trapped within the wings and then turns to ice when the
plane is flown at high (cooler) altitudes. The airplane manufacturer argues that there are no "trap
points" inside the tanks, and that if the pilot properly drains the tanks, all of the water will come
out. In order to prove his point that the wing is defectively designed and has "trap points" within
it, the plaintiff's expert describes the following experiment that he performed.

EXAMPLE
Q. Dr. Weller, do I understand it to be your opinion that the design of the wing in this aircraft
creates "trap points" which prevent the pilot from draining all of the water in the tanks?

A. That is my opinion.

Q. Do you understand that the manufacturer contends that there are no "trap points" and that
the pilot should be able to drain all of the water from the tanks?

A. I understand that is what they say.

Q. Have you performed any experiments to try to prove your theory that the wing has "trap
points" and cannot be completely drained?

A. Yes.

Q. What sort of experiment did you do?

A. I got a plane of the identical make, model and year as the one involved in this accident. I took
the plane into a hanger with full tanks of gas on both sides, just as the plaintiff's tanks were in
this case. I might add that the floor of the hanger was level, just like the hanger where the
plaintiff did the pre-flight inspection of his plane. I then got an old one gallon plastic milk jug
and filled it with water. I dyed the water red with some every day food coloring. After dying the
water red, I opened up one of the fuel tanks and poured the water in. I then waited about 2
hours, and I then went to the sump (drain) and began to drain the tank. Obviously, if the tank
drains properly, I should get my full gallon of red water back.

Q. Well, were you able to drain a full gallon out?

A. No.

Q. How much did you get?

A. A little bit shy of 3 quarts.

Q. Over what period of time did you drain the tank?

A. Over a period of about 90 minutes, which is much longer than a pilot would ever drain a tank
in real life.

Q. What do you mean?

A. The entire recommended pre-flight inspection on this plane only takes about 20

minutes. You are lucky if three minutes of that is devoted to draining water.

Q. Over what period of time did you drain water?

A. About 90 minutes.

Q. Did you measure all of the water that you were able to drain out of the plane?

A. Yes. Every time I drained any water I put it in a measuring device which was on the floor in
the hanger.

Q. Dr. Weller, as you were conducting this experiment, did you videotape it?

A. Yes. I had a video camera mounted on a tripod, and I filmed the entire sequence of events
from the time I filled the gallon jug to pouring it in the tank, and then every attempt to drain the
tank over that 90 minute period.

Q. Did you bring that videotape with you today?

A. Yes, I did.

Q. Your Honor, with the court's permission, I would like to play the videotape of this experiment,
and I would also ask to have Dr. Weller narrate the videotape from the witness stand.

One note of caution about experiments or re-enactments: Be extremely wary of doing them "live"
in front of the jury unless you know they are foolproof. There are few things in a trial more
damaging than a live experiment which backfires in front of the jury. The ill-fated glove
experiment in the O.J. Simpson trial will forever represent the classic illustration of this point.

8. MAKE LIBERAL USE OF HYPOTHETICAL QUESTIONS AND/OR ASSUMPTIONS

The foundation for any expert's opinion are the facts of the case. Sometimes those facts are not
disputed, and the opposing experts merely draw different conclusions from the facts. In other
instances, there aredisputed facts, and the expert accepts a certain version as true. In either event,
it must be made clear to the jury what facts the expert is relying upon. How does one lay out
those facts for the jury? There are two ways to do that. One way is to rely entirely upon the
expert's command of the facts in the case, and let the expert spell them out for the jury. Another
way is for the attorney, in effect, to lay out those facts by using hypothetical questions or asking
the witness to assume certain facts to be true.

It is strongly suggested that you rely upon the second of these two alternatives. Why? There are
several reasons. First, you do not have to worry about the expert forgetting certain facts in the
case, and instead you can "spoon feed" him by incorporating the facts in the hypothetical or the
assumption. Suppose that you have a complicated case, and you are concerned about whether or
not the expert is going to remember all of the facts of the accident. While you may have a great
deal of faith in this expert's technical knowledge and his ability to handle himself on cross-
examination, you are concerned that he does not study the file in great detail and is quite proud
of the fact that he can just "wing it" on the witness stand. The danger with this sort of witness is
that he has not taken the time to learn all of the detail of the file (or if he knew it at one time, he
did not review the file sufficiently before taking the witness stand). If you rely on him to recite
the facts and he forgets certain things, that is not only personally embarrassing, but it will detract
from the expert's overall credibility. Second, if you provide the facts to the expert in hypothetical
or assumption form, you maintain tighter control on the entire testimony by laying out the facts
in your own order and at your own pace. Third, (and this is particularly true of hypothetical
questions) you get to neatly package your entire theory of the case for the jury in the context of
posing a question to your expert.

To illustrate these points, let us consider a product liability case involving a defect in a large
crane. Assume that there are many facts in dispute concerning exactly how the machine operated
at the time of the alleged failure, and your expert's opinion is based upon a certain version of
those facts being true. Rather than saying to the expert, "Mr. Expert, tell us your understanding
about what happened at the time of the accident," (in which event you are totally relying on his
knowledge of the file) you can lay the facts out in this fashion.

EXAMPLE

Q. Mr. Bowman, did you review the various accident reports, witness statements and depositions
of the three workers who were on the scene at the time this accident happened?

A. Yes.

Q. Did they describe in that material what they were doing with the equipment in the

moments leading up to the accident?

A. Yes, they did.

Q. Did you understand that the crew started to work that morning at around 7:00 a.m.?

A. Yes, I did.

Q. Did the materials you reviewed indicate that the workmen set the crane in place on the berm
of the road next to the building under construction with all four outriggers fully extended and
touching the ground?

A. Yes.

NOTE: If the opponent objects on the basis that this is leading the witness, (which technically
speaking it is not) you can simply rephrase each question and begin with "Mr. Bowman, let me
ask you to assume ...."

Q. After they got the outriggers set, did you understand that they raised the level of the boom to a
height of 110 feet?

A. Yes.
Q. Did you further understand that, at the point the crane was raised 110 feet in the air, it was at
an angle of approximately 80. In other words, about 10 short of perpendicular with the
ground?

A. Yes.

Q. Is it your understanding that, after raising the crane to that position, the workmen hoisted
approximately 6-8 steel plates to the work site on the building?

A. Yes.

Another way to accomplish the same thing is to ask a lengthy hypothetical question such as the
following:

EXAMPLE

"Mr. Bowman, I want you to assume that on the day of the accident, the three workmen started
their shift at approximately 7:00 a.m., and at that time they moved the crane into position on the
side of the road next to the building under construction. I want you to further assume that, once
having so positioned the crane, they set all of the outriggers in their full extended and locked
position. You should assume that after setting the crane in that fashion, they raised the boom of
the crane to a height of 110 feet, at which point the boom was at an angle of

approximately 80, or 10 short of perpendicular to the ground. I want you to further assume that
...."

This technique may be similarly employed in a medical malpractice case where a physician bases
his opinion on the facts reflected in the medical chart. Very often, both sides are relying on the
facts in the chart to be true, but their experts simply draw different conclusions based on those
facts. You are concerned that your doctor, while knowledgeable in his area of practice, will not
remember all of the facts reflected in the chart. Hence, you may question him as follows:

EXAMPLE

Q. Doctor, in analyzing this case, did you review the hospital chart for Ms. Jones' February,
1994, admission to Maple Grove Hospital?

A. Yes, I did.

Q. Did you understand from those records that she initially came to the emergency room at
approximately 8:00 a.m. in the morning?

A. Yes.

Q. Does the chart reflect that she was complaining about acute back pain as well as urinary
retention?
A. Yes.

Q. Does the chart also indicate that the onset of these symptoms was rather sudden?

A. Yes, within the past 24 hours as I recall.

Q. Was she seen by a physician in the emergency room?

A. Yes, she was.

Q. Was that Dr. Babbitt?

A. Yes.

Q. Does the chart indicate that he performed a physical examination of the patient?

A. Yes.

Q. With regard to her lower extremities, was a neurologic evaluation done?

A. Yes.

Q. If you would refer to the hospital chart, can you tell us what the results of that examination
were?

A. Both extremities were depressed neurologically.

Q. What do you mean by "depressed?"

A. Her reflexes and sensation were less than what they should have been.

Q. Is it your understanding that at some point she was sent for lumbar spine x-rays?

A. Yes, that is my understanding.

Q. Can you turn to the radiology section of the chart and indicate what the result of those
lumbar films was?

A. Yes, the radiologist indicated that the x-ray was "definitely suspicious for central disc
herniation at L4-5."

Q. At some after the x-rays were taken, was the patient admitted to a regular room in the
hospital?

A. Yes. She was admitted to a room at approximately 6:00 p.m.

Q. Dr. Sellers, I want you to assume that over the next 24 hours, the nurses made the following
observations or notations with regard to this patient. At 9:00 p.m., "Patient states that both legs
are getting more weak and more numb." At 1:00 a.m., "Patient taken to bathroom, but unable to
void. Catheter inserted. Patient drained of 400 cc's clear urine." At 9:00 a.m., "Patient states, 'I
feel like I have to move my bowels, but I can't do it.'"

9. TAKE THE "STING" OUT OF ANTICIPATED ATTACKS ON CREDIBILITY

Lawyers often cringe at the thought of the opposing counsel cross-examining their expert about
their whopping fees or their courtroom "history." Before giving an example of how you may take
the "sting" out of this issue, however, consider whether this is a subject which you will need to
address at all, i.e., is it likely that the question of fees or prior litigation work will be brought up
by your opponent?

It is this author's opinion that if experts on both sides are equally susceptible to this line of cross,
there is little to be gained by "beating up" each other's witness on this issue. Thus, it would seem
that the most likely situation in which your expert is going to be cross-examined about these
subjects would be where there is a significant disparity between what your opponent is paying
his expert and what he guessesyour expert is being paid or how often his expert testifies as
opposed to yours.

Having noted the above, let us assume that you are in a situation where you expect that the
opponent will cross-examine on the subject of fees. Try to defuse some of the impact of that
cross with questions such as this on direct:

EXAMPLE:

Q. Doctor, would I be correct in assuming that it has taken you several hours to review the
material pertinent to this case?

A. Most definitely.

Q. Do you have any idea how much time you have devoted to this case?

A. Probably 15-20 hours over the past two years, and then the time involved in traveling here
today and spending time in court.

Q. Does the time you spend working on a case such as this take time away from your regular
affairs?

A. Certainly.

Q. Are you compensated for the time that you have taken away from your regular practice to
work on this case?

A. Yes, sir.
Q. How do you determine the basis for your charges?

A. I simply charge by the hour. So my fees would be based on however much time I have devoted
to the project, no more -- no less.

Q. What are you charging per hour for your time?

A. $250.00/hour.

Q. Would that be comparable to the hourly rate you would earn in your regular practice?

A. Well, I do not really charge by the hour in my regular practice because we simply do not do
things that way in the medical profession. Instead, we tend to charge a flat fee for certain
services. If I was to average things on an hourly basis, I would say that it is quite similar. I might
add that in many ways this sort of work is more bothersome than my regular medical affairs.

Q. What do you mean by that?

A. When I do work such as this, I tend to be at the mercy of somebody else's schedule. For
example, there is a court deadline by which I must complete my report or there is a court
schedule which dictates that I must be in court at a particular time. As you can imagine, that can
be quite disruptive to not only me, but my staff and patients.

Here is one suggestion on taking the "sting" out of expert fees. In certain circumstances you may
be able to actually "turn the tables" on your opponent. For example, suppose that in a medical
malpractice case your expert is charging an unusually high rate of $500.00/hour. You are
concerned with how that number may sit with a jury, regardless of whether it is brought out on
cross or direct. To put this figure in perspective, however, you may want to check and see what
the defendant doctor charged for the surgery which is at issue in the case. It would not be
unusual to determine that the fee for the surgery was $1,500. You may then review the anesthesia
record and discover that the surgery took one hour and ten minutes to complete. When the
defendant himself is on the stand, you can now bring out the fact that he charged, in effect,
$1,500 per hour for his services, three times what your expert is charging!

If you anticipate your expert being cross-examined on his "history" of testifying on behalf of
similar parties (plaintiff or defense) and/or how much of his time he spends doing litigation
work, try to defuse some of that cross-examination with questions such as the following on
direct:

EXAMPLE :

Q. Dr. Walsh, do you regularly get involved in reviewing litigation matters for plaintiffs?

A. Yes, I do.

Q. How often do you do it?

A. I almost always have at least a few cases that I am consulting on at any given time.

Q. Do you enjoy this sort of work?

A. I enjoy it from an intellectual standpoint. I find it to be challenging, and also it requires me to

be up-to-date on the latest trends and knowledge in my field. Also, to be quite frank with you, I
know there are many of my colleagues who may privately admit that [there was a problem with
the design of a product] or [a doctor has made a mistake] but they are reluctant to step forward
and publicly state these opinions. I believe that if an injury has occurred which should have been
avoided, it is the responsibility of someone in the profession to step forward and say so.

Q. Dr. Walsh, do you usually testify on behalf of the plaintiff or the defendant?

A. In those cases where I have offered testimony or written a report, they have usually been on
behalf of the plaintiff. The reality is that it is the plaintiff who usually has contacted me, although
I am equally willing to review a matter for the defendant when requested. I should point out,
however, that in the overwhelming majority of instances where I am contacted by a plaintiff to
review a matter, I tell them that I do not believe they have a legitimate claim. It is only in the
relatively small percentage of cases where I believe the plaintiff has a legitimate claim that I end
up writing a report or testifying. So, when you ask me on behalf of which party has most of my
testimony been, clearly it has been the plaintiff. However, in the overall scheme of things, I
usually end up informing the plaintiff I do not believe they have a legitimate case.

10. SUMMARIZE THE OPINION AT THE END OF THE EXPERT'S TESTIMONY

It is often said that a lawyer should strive to end direct or cross of a witness on a high note. In
regard to the expert witness, that means taking a few minutes at the end to pose a series of brief
questions which capture the essence of his/her entire theory in the case. To prepare for what
these questions should be, try this technique. Pretend you only had one minute to explain to
someone the conclusion(s) your expert has reached in a given case. You will probably give a 60-
second explanation which incorporates two or three major points, perhaps one leading to another.
Try diagramming the three points like links in a chain. Now, prepare a few summary questions
which draw out each of those three basic conclusions. (Remember, you do not need a lot of detail
or basis for the conclusions at this point because presumably the expert has already provided that
in the earlier stages of direct testimony.) The more important thing here is to simply leave the
jury with a quick overview of what the expert has said. In this way, when they go back to the
jury room and one juror asks of another, "What did the plaintiff's expert say?", the other juror
will be able to remind him of the overview you have provided.

EXAMPLE

Q. Dr. Aaron, to summarize your testimony of the past few hours, can you tell us again what, in
your opinion, was the cause of death of Mrs. Jones?

A. Diffuse peritonitis as a result of an ovarian abscess.

Q. When she was seen in the emergency room the evening before her death, was the ovarian
abscess discovered?

A. No.

Q. In your opinion, should it have been diagnosed?

A. Yes.

Q. What tests or examination should have been done that would have led to the correct
diagnosis?

A. A full pelvic exam should have been done that would have led to the discovery of the ovarian
abscess.

Q. In your opinion, was the failure to do a pelvic examination a breach of the accepted standard
of care?

A. Yes.

Q. Did this breach set in motion a series of events which led to Mrs. Jones' death?

A. Yes. If the abscess had been discovered, so too would the peritonitis, and both of

them could have been drained before the infection got so bad that the patient died.