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In many western movies a wagon train moves across the prairie. Success looms just over
the horizon, when suddenly they are ambushed by Indians. The wagons circle in a desperate
fight against all odds. One brave fellow breaks out to make a run to the fort, which
fortunately is just across the hills in the next valley. In the nick of time before all
hope fades, and just in time for dinner if not afternoon tea, the cavalry arrives with
flags flying and bugles blaring.
But this is not a movie; this is your court case. It is 8:30 a.m. Plaintiff rested
yesterday. You have a short, sweet and devastating defense. You are leading your
defendant-client to the trails end of litigation: success over plaintiffs
assertion that your client signed this $100,000 lease on a chicken hutch. In stately order
your client and sundry other witnesses cumulatively prove that: 1, defendant was out of
town the day the document was purportedly signed (he has signed and dated charge slips to
prove it); 2, defendant (as his mother assures the court) never wrote that way; and 3,
defendant never even did any business with plaintiffs firm (per plaintiffs
Each of your witnesses is unscathed by cross-examination. You rest. It is almost 10
a.m., so the judge takes the morning break. Upon re-convening, plaintiff attorney says:
"Your Honor, I have one witness in rebuttal."
Your opponent knew your defense would be denial of the signature. He knew you had a
line of witnesses to impeach his only witness, plaintiff himself. He had to have planned
this all along. When the judge says, "Call your rebuttal witness," he says:
"Plaintiff calls Mr. Q.D. Expert who will testify to the authenticity of the lease
signature." The expert ambush is sprung. Your wagon train goes into panic. Defendant,
defendants mother, all your people are asking you what is going on. Worst of all,
you have never faced that brand of expert before.
You immediately make every possible objection you can recall since the first day of law
school, no matter how remotely applicable it is. The judge brushes them all aside,
assuring you of a fair opportunity to cross-examination, his rebuttal witness will finish
by lunch, thus arguments can proceed at 1:30 as both parties and the court had
anticipated. Somehow you do not find all this assurance reassuring.
How very considerate of your opponent not to upset your plans for the rest of the day.
However, you need tonight to find out how to counter this Mr. Q.D. Expert, and then you
will need tomorrow to pull it off. For all practical purposes, you might just as well be
facing an expert from Venus testifying on the fusion power units of Martian spaceships.
How can you find in short order an expert of your own to tell you how to handle this
strange creature taking the oath and giving you a gaze of conquest and superiority?
There may be no cavalry to call even if you could call them. They might never arrive in
time anyway. Your case is one wagon train wiped out with victory in sight. Youre a
goner. Right? Not necessarily.
The expert ambush need not be a handwriting expert; it could be any kind of expert.
Since I know about handwriting, I will use it to illustrate how to hold out until you can
call in your own expert trooper, of whatever brand expert. Not being an attorney, I cannot
tell you about laws and rules, only about techniques for taking the upper hand over the
expert who knows it all, while you know nothing at all about that expertise.
A Few General Pointers
The usual guidelines for cross-examining an expert are either inapplicable when facing
the expert ambush or require modification. You are in a desperate situation, and
desperation calls for desperate measures.
Your strategy is to make as legitimately lengthy an examination as possible. Extend
voir dire till you can call in a consultant to help with cross-examination of the
experts testimony in chief. In the illustrative example, that means using up to one
and a half hours for a thorough voir dire after the fifteen-minute, or less, presentation
of qualifications. The 60 to 90 minutes for lunch might permit finding someone who can
come in today.
Then your strategy is to make a technically and properly complete cross-examination
till the 5 p.m. adjournment. At which time the judge should be informed either that your
examination is complete or precisely how much more you have to go. Resist the ploy of
telling the judge you only have two or three more questions. As we all know, when an
attorney says, "I only have two or three more questions to go," the word
"question" is a synonym for "hour."
And what is another night without sleep during litigation? You and your expert
consultant cum surrebuttal witness, will be able to prepare the presentation which will be
a brief and deft coup de gras to your opponents case.
Now for tactics. You do not want just to kill time, as that would rouse the
judges legitimate ire. Begin by explaining to the judge that you will need to pursue
in court all the discovery and deposition you would have pursued pre-trial if your
opponent had been courteous and honest enough to disclose his long and well-laid plans for
calling Mr. Q.D. Expert. Request adjournment to permit such a full-scale discovery. If
denied, your first task is to conduct just about the most complete expert voir dire you
ever conducted, but doing it cold. Getting the knack of that will give you the knack of a
prolonged and thorough cross-examination.
Your first need is for a copy of Mr. Q.D. Experts curriculum vitae. No matter how
short it is, it has to be made up of words, and every word is a universe in its own right.
And every universe is filled with many, many questions, all of which you can ask. So:
1. Voir dire every sentence in the c.v., down to each phrase and every word. With
a one-page c.v., for example, one could legitimately interrogate for a couple days at
least, barring total exhaustion of judicial patience. It starts off: "Duties
." And gives three complex combinations of duties, one of which reads:
"restoration and decipher of indented, erased, altered and obliterated
writings." You could ask the same dozen or more questions of each of those six
principal words, but I will illustrate a few for "indented" only.
- Mr. Expert, please define "indented writings."
- In what situations do you encounter indented
- What special equipment do you employ in restoring indented writings? In deciphering
indented writings? Please explain each one and its use.
- What training did you receive to use [name each piece of equipment in turn] properly?
- [After several more such questions] What application does examination of indented
writings have in determining the authenticity of defendants purported signature on
the lease to the chicken hutch?
- None? So really your qualification in indented writings, which we have been exploring
for the last 45 minutes, is irrelevant to the problem before this court, right? Your
honor, I move that this witness be dismissed as having irrelevant qualifications, based on
his own testimony just now.
2. Explore each book, article or author he has read in his field, along with
every class, conference or meeting of any kind he ever attended. Particularly, ask of each
whether it is an authority relied on in this case. Authoritative authors are gold mines of
impeachment. If to escape such a source of impeachment the expert names no authoritative
author relied on (a trick an ABFDE expert got away with once, while another said he was
his own and only authority), he cannot qualify as practicing an established, recognized
discipline or science. He would likely not qualify under either a Frye or a Daubert type
of test for admissibility of scientific testimony.
3. Have the expert define every technical term employed, plus every technical or
obscure term used in the definition. For example, handwriting experts love to explain away
differences between the disputed and exemplar signatures by saying they are "normal
range of variation." That phrase simply begs for a two-hour exploration of what the
three terms mean and how they are ascertained in this specific instance. For example, ask:
- "Normal." That means based on some norm, right? What is the norm upon which
you base this supposed range of variation?
- Let me help you out. Is it the normal as opposed to the abnormal or subnormal? [If the
expert is silly enough to go for that, you can challenge on lack of psychological
training.] As to what most people in San Francisco or the Bay Area or California or the
U.S. or the world do?
- What are the scientific criteria for identifying this norm? What are the statistical,
research studies which establish it? Where are they published?
- Explore thoroughly each published study the expert mentions.
Do the same for "range and "variation." With a few such well-aimed
queries, you will find there is a lot of fluff and hot air in a lot of expertise.
4. Make the expert describe in detail each piece of equipment he owns, its
purpose, function, operation, cost, training received, etc. and so on. Then ask its
application in this case. If applied in this case, explore exactly how applied and the
totality of results. If not applied, then why not and does that not indicate more
irrelevant qualifications for identifying a signature? If you have a penchant for unfair
deviltry, you can say: "You" honor, we need a specialist, not some jack of all
trades who cannot focus on any particular skill, but will do whatever he can to earn a
5. Obtain from Mr. Q.D. Expert the most detailed step-by-step description of his
method for doing each thing he did in this case. Then ask for a complete explication for
each step: who established it; what proves its validity; what proves you are reliable in
performing it; is there not a better way to do it; plus similar enquiries as your wisdom
6. Employ all the usual voir dire questions, even if you suspect some will yield
no beneficial information. Remember, surviving until tomorrow when your cavalry comes is
your only hope of surviving this litigation. Besides, you never know when and where you
will strike evidential gold.
7. Before you can complete your third question, the judge will start realizing
that this case may not end today. Besides already being tired of seeing both counsel, the
judge desperately does not want a clogged court calendar to become more clogged. At the
same time, plaintiff attorney knows his expert ambush will succeed only if it and the
entire case end today. Judge and opposing counsel have an interest in common: Push you to
expedite your voir dire and cross-examination. So your seventh tactic will be methods to
resist being rushed. That requires knowledge and mastery of the legal tools involved,
something I am no help with, but I can offer this suggestion: Use any effort to rush you
along as an important legal issue to be addressed at length. Thoroughly. But most
important of all, take every opportunity to reiterate to the judge your legitimate need to
pursue full discovery during court session unless provided a continuance to do so. Recall
each item of information you solicited by this protracted and thorough questioning which
was beneficial to your clients cause. Explain how doing less than what you are doing
would be unethically abandoning your clients interests. At every opportunity you
have, repeat your reasonable request for a continuance to permit proper discovery.
What are some of the attorney skills which seem applicable in this desperate hold-off
for survival but might be ill advised? Mostly it is the specialized application of the
chicanery as opposed to the common wisdom of the legal profession. Let us take a certain
demeanor as an example of a tactic to avoid, because it would be sheer dragging out of
time as opposed to legitimately thorough questioning.
You might pause reflectively before every statement you make, however inane it may be.
But the judge would know you are killing time, and that would belie the assertion you are
only pursuing proper inquiry.
Courteously let your opponent, the ambushing expert and the court speak at length on
any topic they wish. There is nothing like drafting the opposition into your cause!
However, they would see through that quite quickly and might no longer take seriously your
requests for legitimate discussion.
You might sincerely ask the court and opposing counsel to elucidate their points even
further. You want so much to be ever so clear about what they are telling you. But that
also could well backfire for the same reasons.
At each answer the witness gives, you might show your appreciation. Many attorneys have
the annoying habit of repeating each answer before asking the next question. "Did you
sneeze? You sneezed. Did you also cough? You did not cough. Did you
?" But now
is not the time to adopt that annoying habit. You do not want to annoy the judge, you want
to win his appreciation for your position. Also, dont preface each question with
that ubiquitous, pseudo-polite phrase, "May I ask you." I fantasize that some
day I will reply to it for the record: "No! You may not ask me that." A judge
would be especially and reasonably annoyed with the attorney who makes the courtesy very
courteous and combines it with repetition of the answer, such as: "May I ask you
about the year 1985 when you said you had the good fortune of studying with Dr. Lot Z.
Smartz, the world authority on I-dots. What particularly in that experience gave you
special skill in authenticating signatures on leases to chicken hutches?"
One might invite the expert to brag some more, a thing experts are not the least bit
loath to do: "Thank you, sir, for telling us how much you enjoyed that year. Is there
anything else you wish to add to your answer?" On the other hand, if you focus the
expert only on the topic you are pursuing, the judge would better appreciate that you are
not wasting time but are employing it to the fullest.
One thing every attorney could adopt is the one thing which some attorneys seem to find
hardest to do, even harder than being totally deferential to opposing counsel: Speak in a
measured pace with well enunciated words. That would stretch out the time, but in a way
the court reporter at least would be most appreciative of. An exceptionally good record of
all that you are doing might well be needed later.
In all of this, avoid dead time. Be thorough as you never were thorough in your legal
life, but do so not by stalling, but by keeping things moving, and moving, and moving, and
always to good purpose.
Since Mr. Q.D. Experts c.v. was such a wealth of inspiration for detailed
enquiry, think how nice it would be to have a copy of everything in his file for the case.
Besides, asking for a copy of his file might permit a legitimate break to allow
photocopying. Then every document with its every word will permit you to recommence the
grilling you did on the c.v.
During the direct questioning of the testimony in chief, ask that unclear things be
repeated, that answers be given in less a rush. You will need very detailed notes to
permit very detailed cross-examination. Make every valid objection possible, but avoid the
merely plausible and obstructive. If he hears nonsense objections, the judge will
reasonably overrule 99 and 44/100 percent of them, and might throw a sanction your way to
boot. All in all, look for items which lend themselves to the kind of close enquiry which
"normal range of variation" did.
How to locate and send out for the cavalry is another topic, as is how to work together
to fend off the ambush. In summary, contact the office at the first opportunity in order
to have someone begin a serious search for a consulting expert and possibly a surrebuttal
witness. Provident preparation against the moment of panicked need would be to have your
own file of potential experts. Maybe take a book like "The Northern California
Register of Experts and Consultants" and rate experts listed under each subject I
through n. Then in a pinch your secretary knows who to call first. No need to say whom I
recommend marking 1 under "Questioned Documents."
At least with the above you will have hopefully survived the day, and hopefully your
skilll and forthrightness would have gained the judges approval for a continuance.
But survival is the most basic human instinct; and, if you do not survive to fight another
day, you will have for certain only gained your opponents approval. What possible
comfort could that be?