Posted in News on September 10, 2021
We’ve all dealt with the slick, polished professional witness with a CV a mile long who looks the part of the university professor just there to help “shed light on things” for the jury. The professional witness has mastered the skill every politician learns—no matter the question, give the answer you want to give. Of course, to us as the examiner, the evasive professional answerer can be abundantly frustrating. Having tweaked my strategy with these witnesses over the years, I have arrived at my personal favorite strategy which I call “agree or disagree.” Here’s how you play:
Do your homework. Like every deposition, you can’t be effective if you haven’t done your homework. For a professional expert witness, this means doing your Hegwood discovery to learn the witness’s relationship and communications with counsel and the defendant, how often they testify for the defense, how much they are paid, etc. Search out and read prior reports and testimony they’ve given. (MTLA’s archives and the TrialSmith directory will have these materials.) Give the expert’s CV a hard look and confirm what is being represented—for instance, we just had a witness who was listed as an adjunct professor at a college, but the college confirmed she was not and had not been a professor there in over a decade. Read every article the expert has published (Google Scholar will have most of these.) See who has been critical of their opinions in other scholarly opinions, or in previous cases. Look for orders precluding or limiting the expert’s testimony. See if they are a member of Seak, Inc. Seak puts on continuing education programs and publishes materials with titles like “How to Make More Money as an Expert Witness” and “How to be an Effective Expert Witness at Trial.”
Make your list. From the materials described above, make your list of statements which you want the witness to confirm or deny. The list should include anything from the expert’s report you want him or her to concede as well as any information from the materials you’ve reviewed that helps your case. And it needs to be annotated so you can quickly go to your source. Here is an example of part of my list with a defense neuropsychologist expert:
“There is substantial overlap and non-specificity of PTSD and Post Concussive Syndrome, so diagnosing Post Concub vssive Syndrome in the presence of the diagnostic differential or comorbidity of PTSD is very challenging.” (Opinion 45)
“Plaintiff is suffering from PTSD caused by the motor vehicle accident at issue.” (Opinion 45)
You “think he will be very unlikely to get better from the standpoint of his over manifestation of symptoms, his symptom complaints, his perception of his belief of being brain injured. (Opinion 47)
You administered MMPI-2-RF. That’s a personality test, not a cognitive functioning test. (31)
MMPI-2-RF is shortened version of MMPI-2. MMPI-2 has 567 items, 2-RF has 338 items. (32)
You wouldn’t share with me the raw testing of Plaintiff’s answers to the scales on the MMPI-2-RF that you administered. (24)
You can’t even tell us what the questions Plaintiff was asked that make up those scales. (27)
Not a medical doctor.
Not qualified to prescribe medicine. (91)
Or opine that medicine should not be prescribed. (91)
Have not published any articles about TBI (93)
This is at least the 4th time you’ve been retained by defense counsel here to testify on behalf of her client. (97)
If a treater makes a misdiagnosis, what are the consequences?
How about as a paid expert, what are the consequences to you if you are wrong?
“Agree or Disagree” at Deposition. Armed with your annotated list of facts you want the witness to concede, you’re ready to play. I usually begin with the witness by explaining:
Doctor, I know your time is very precious, and indeed we only have you for 2 hours today for which we are paying you $2,000. For that reason, I’m going to try to be very efficient with your time so you can get on with your day. To be time-efficient, I’m going to proceed with something I call “agree or disagree.” I’m going to read you a statement, and I’m going to simply ask you to say whether you agree or disagree with it. Do you understand?
First and most importantly, don’t ever be cute and try to trick the expert with a half-truth or partial quote—it’s not a fair way to play, and the expert will punish you for trying!
Lead with low-hanging fruit to see if you can get the expert in a rhythm of agreement. But don’t be surprised that the expert won’t want to play along. The good ones are trained and proficient in not being pinned down. And, at deposition, you don’t have a judge there to make them follow the rules, and often you have a defense counsel who is aiding the evasive witness. With that in mind, it is critical that you videotape every deposition you take. The transcript alone won’t do justice to an evasive witness.
With the video camera recording, call out and shut down any speaking objections by defense counsel. If the witness won’t agree or disagree, have them confirm it on the record. Then, by separate question, have them explain why they can’t agree or disagree. Make it very clear, on the record, that they can’t simply agree or disagree. Here’s an example from the recent neuropsychologist deposition:
Q. Let me ask you whether you agree or disagree. The FBS-r test pulls physical and psychiatric symptoms that legitimate patients would endorse and instead ascribes points towards malingering. Agree or disagree?
DEFENSE COUNSEL. I have an objection. Object to form, vague overly broad as to what is meant by legitimate patients. Unless he knows what the test directs what is meant by legitimate patients.
Q. Counsel, I would ask no more speaking objections. Your form objection is noted and I would ask you to limit your objections consistent with the rules.
A. I’m not familiar with the specific items and so I can’t agree or disagree with that statement based on the item content.
Q. Because as you sit here today you’re not aware of what the FBS-r items are?
A. That’s correct.
Q. Courts have ruled that the FBS is not reliable, agree or disagree?
A. So I’m somewhat familiar with the use and application of FBS and FBS-r within Daubert or Frye kind of — and this is the evidential — evidentiary kind of hearings. And so I would not be surprised if some courts have determined that it passed the Daubert criteria, for instance, and other courts may have determined that they found it to be unreliable based on opinions or expert evidence or literature that they reviewed.
Q. Now I’ve asked you a series of questions where I’ve asked you to agree or disagree, and there hasn’t been a single question that you’ve been able to agree or disagree with my statement, correct?
A. That is correct that I didn’t say unqualified agree or unqualified disagree as my responses to any of your questions.
Q. And in the MMPI-2-RF that you administered to my client, there was no opportunity for him to do what you’ve done with the questions that I’ve just posed to you, which is qualify or give an explanation. In other words, he had to either agree or disagree with those questions in your test, right?
A. The format of the MMPI-2-RF is true/false. That is correct that it is a true/false objective format in all cases, whoever is completing that.
“Agree or Disagree” at Trial. At trial, the defense attorney and witness have to be more careful as they know the judge and jury are watching. But they’ll still try. I used to ask the judge for help when a witness wouldn’t answer, something like “your Honor, can you please direct the witness to answer my question?, ”but I don’t anymore. I like it when the judge gets mad for herself, and directs the witness to answer my question. By that point the jury is just as mad and frustrated that the witness is evading.
When the witness answers a different question, point it out to the jury. Here’s a recent example with an orthopedic surgeon:
Q. You presented yourself to this jury as an orthopedic surgeon, correct?
A. That’s correct.
Q. You haven’t performed surgery since August of 1994, correct?
A. The American Academy of Orthopedic Surgeons doesn’t require that you operate to be a board certified orthopedic surgeon.
Q. Have you received training as an expert witness in how to not answer a lawyer’s questions?
Q. Okay. So this is going to work faster if you answer the questions that I ask you. And the question that I asked you is you last performed surgery in August of 1994, correct?
A. That’s correct.
Or, point out how the witness was perfectly capable of answering the defense counsel’s questions on direct, but can’t afford you the same courtesy:
Q. Doctor, this morning, we all observed that when defense counsel asked you a question, you would answer it succinctly and directly. You even commented a few times that the question asked was a “good question.” But so far, in all of the questions I’ve asked, not only have you not told me any of my questions were “good ones,” but you haven’t been able to answer them succinctly or directly. What is it about how I am asking questions makes it so much more difficult?
A. My demeanor hasn’t changed at all. I don’t know what you’re talking about. I’m doing my best to answer your questions accurately.
Some of the best fodder for “agree or disagree” is statements the expert has made herself elsewhere, but which don’t fit her narrative anymore:
Q. Would you agree that a hundred percent of your practice is related to defense firms in personal injury cases and zero percent or close to zero percent is related to injury victims
or injured workers like my client?
A. I would say that at different times the percentages have been different, but for the most part most of the work is for defense firms, yes.
Q. Doctor, agree or disagree, the linkage of expert testimony with current and future financial gain is an inherent and powerful conflict of interest which has significant potential to lead to bias.
A. I’m not sure if I can agree or disagree. I have written something more recent than that.
Q. Would you agree, Doctor, that you wrote, quote, “The linkage of expert testimony with current and future financial gain is an inherent and powerful conflict of interest which has significant potential to lead to bias;” is that your writing?
A. That is from a number of years ago, yes.
Like all aspects of trial, every trial lawyer has their own method of conducting cross-examination. I like this one because it is simple and highlights when a witness won’t give straight answers to straight questions.
 This is the time to pull out the Seak materials where they clearly do get training on how to be evasive.