Working Well with Custody Experts

Preparation

Preparation is the single most important factor in avoiding cross-examination meltdown. Many experts are uncertain about the style they should adopt on cross-examination. They do not know how fully to respond to a question or how argumentative they should be. Help your expert decide on the style he or she will adopt, and then rehearse it.

In addition, prepare the expert for the opposing attorney's style to avoid damage from a surprise frontal assault or seduction by the opposing counsel's apparent charm. A realistic plain description of opposing counsel will help the expert know what to expect. Share with your expert issues and questions you think are likely to emerge, and review questions he thinks may be asked on cross-examination. Some areas about which the expert is concerned are unlikely to appear on cross, so you can save time and energy by focusing on the issues you think will arise, such as the dates of the interview and statements made by the litigant. Remember, the attorneys almost always know more about what is likely to happen in court than the experts.

Etiquette

Some experts find they can communicate more on cross-examination than on direct. Cross-examination gives them a chance to address questions and doubts that the judge may be entertaining, and to clarify information from the direct examination. During cross-examination, do not leave your expert unprotected, but be aware that the use of objections during cross-examination of your expert is a double-edged sword. While it may interrupt the flow of opposing counsel's direct, it may also distract your expert. Give your expert some procedural instructions — when you make your objections be sure your expert knows he must give you time to object and must not talk over your objections. Do not allow opposing counsel to ask inappropriate personal questions or drag your expert through irrelevancies because it will weaken his testimony. At the same time, an overprotected witness loses credibility. The unanswered question remains part of the judge's awareness, even if it is not allowed. Be aware that too many objections can transform a cross-examination into an interchange between the lawyers rather than an exchange of information, which can harm your client. Overprotecting an expert can interfere with his or her telling the court the whole story.

After the Trial

Some experts are curious about the outcome of the trial. Ask if your expert would like some feedback about his or her presentation of testimony. If he or she asks for feedback, give it honestly and constructively. You and the expert are likely to meet again, so it is important to maintain a positive relationship.

Conclusion

Experts can contribute a great deal to a trial if they are utilized well. To do this, an attorney must have a clear and reasonable vision of the expert's role. He or she needs to appreciate the expert's knowledge and values, as well as the constraints on the expert's time. Recognizing that experts and attorneys come from different cultures encourages respectful and effective collaboration. The attorney should anticipate the difficulties faced by experts and prepare him to deal with those difficulties. To work well together both parties need a clear agreement about the expert's role, including the nature of the evaluation, issues of scheduling and financial arrangements.

Mental-health testimony is often complex, and experts frequently lack experience in giving it. Consequently, the attorney should ensure that he can elicit the testimony properly and that the expert is ready for cross-examination. Experts need to prepare not only the content of their testimony, but their style of presentation. They must be prepared for courtroom procedure and personalities so they are not taken by surprise on the witness stand. The focus of both the direct and cross-examination should be to provide the court with necessary information. Courtroom tactics should be planned with this goal clearly in mind. Careful attention to these factors will result in effective expert testimony with a minimum of stress and frustration.

The first two parts of this article addressed issues surrounding pre-trial preparation of an expert, such as financial arrangements and scheduling, trial preparation and direct testimony. The conclusion herein discusses cross-examination and post-trial feedback.

Advantage: Attorney

The cross-examination of an expert who has been trained primarily as a clinician often places the attorney at a great advantage. As clinicians, experts are rarely confronted with pointed questions, and their credibility is seldom doubted. Experts commonly find vigorous cross-examination humiliating and infuriating. Some rise to the challenge, treating the questions as opportunities to teach and to clarify their views. Others respond emotionally, which interferes with their ability to give appropriate answers. There are several says to help your expert deal with these difficulties.

Preparation

Preparation is the single most important factor in avoiding cross-examination meltdown. Many experts are uncertain about the style they should adopt on cross-examination. They do not know how fully to respond to a question or how argumentative they should be. Help your expert decide on the style he or she will adopt, and then rehearse it.

In addition, prepare the expert for the opposing attorney's style to avoid damage from a surprise frontal assault or seduction by the opposing counsel's apparent charm. A realistic plain description of opposing counsel will help the expert know what to expect. Share with your expert issues and questions you think are likely to emerge, and review questions he thinks may be asked on cross-examination. Some areas about which the expert is concerned are unlikely to appear on cross, so you can save time and energy by focusing on the issues you think will arise, such as the dates of the interview and statements made by the litigant. Remember, the attorneys almost always know more about what is likely to happen in court than the experts.

Etiquette

Some experts find they can communicate more on cross-examination than on direct. Cross-examination gives them a chance to address questions and doubts that the judge may be entertaining, and to clarify information from the direct examination. During cross-examination, do not leave your expert unprotected, but be aware that the use of objections during cross-examination of your expert is a double-edged sword. While it may interrupt the flow of opposing counsel's direct, it may also distract your expert. Give your expert some procedural instructions — when you make your objections be sure your expert knows he must give you time to object and must not talk over your objections. Do not allow opposing counsel to ask inappropriate personal questions or drag your expert through irrelevancies because it will weaken his testimony. At the same time, an overprotected witness loses credibility. The unanswered question remains part of the judge's awareness, even if it is not allowed. Be aware that too many objections can transform a cross-examination into an interchange between the lawyers rather than an exchange of information, which can harm your client. Overprotecting an expert can interfere with his or her telling the court the whole story.

After the Trial

Some experts are curious about the outcome of the trial. Ask if your expert would like some feedback about his or her presentation of testimony. If he or she asks for feedback, give it honestly and constructively. You and the expert are likely to meet again, so it is important to maintain a positive relationship.

Conclusion

Experts can contribute a great deal to a trial if they are utilized well. To do this, an attorney must have a clear and reasonable vision of the expert's role. He or she needs to appreciate the expert's knowledge and values, as well as the constraints on the expert's time. Recognizing that experts and attorneys come from different cultures encourages respectful and effective collaboration. The attorney should anticipate the difficulties faced by experts and prepare him to deal with those difficulties. To work well together both parties need a clear agreement about the expert's role, including the nature of the evaluation, issues of scheduling and financial arrangements.

Mental-health testimony is often complex, and experts frequently lack experience in giving it. Consequently, the attorney should ensure that he can elicit the testimony properly and that the expert is ready for cross-examination. Experts need to prepare not only the content of their testimony, but their style of presentation. They must be prepared for courtroom procedure and personalities so they are not taken by surprise on the witness stand. The focus of both the direct and cross-examination should be to provide the court with necessary information. Courtroom tactics should be planned with this goal clearly in mind. Careful attention to these factors will result in effective expert testimony with a minimum of stress and frustration.