In the third part of our annual series celebrating the nominees for the Solicitor Advocate of the Year award at the Law Society’s Excellence Awards, Ranjit Uppal provides a 10-point guide to help young advocates begin to develop their own style and techniques when cross-examining experts.
Since gaining my Higher Rights, I have developed my own style and approach to preparing for a contested hearing and cross-examination.
In any given hearing, you may be challenging a psychologist, psychiatrist, independent social worker, or a paediatrician. Whoever you may be facing, as all advocates should know, the key to a successful cross-examination is thorough preparation. It may seem obvious, but unless you have read all of the papers and understand your case inside out, you will not be reaching your true potential as an advocate.
So how do you prepare to challenge an expert witness? It is very important at the outset of a case to list the key issues the court is being asked to determine. Identifying the key issues will help guide your questions when preparing for cross-examination.
It is also important not to ask every possible question in cross-examination, but to focus on the relevant issues. This assists the judge in preparing their judgment, and it shows that you are picking the strongest points in your case, providing for more powerful cross-examination, and ultimately for more persuasive submissions. It is always best to avoid the scenario whereby your client provides you with a list of 50 questions and requests that you put all these questions to a witness. It is the role of the advocate, not the client, to decide what is relevant in cross-examination.
It is often helpful to explain to the client what issues the court is being asked to determine. You may also wish to go over the legal points that are being considered, and why you believe the questions that you have prepared are focused and relevant for the purposes of assisting the court in reaching a decision and in challenging the relevant expert witness evidence. Again, it is the role of the advocate to decide the witness list.
Top tips for cross-examination of a professional witness/expert
1. Identify all of the calendar dates relevant to the witness.
For example, identify on which date:
- the letter of instruction was submitted
- the relevant statements/pleadings was sent to the expert
- interviews/assessments were carried out
- the report was prepared.
Often an expert will have received a letter of instruction with the relevant documents attached, and they will commence their interviews with your client for the purposes of preparing their report for the court. In many cases, key documents are not included in the original letter of instruction, or they are sent much later during the assessment process, if at all. Therefore careful scrutiny of what documents have been sent and by whom, and identifying whether there are any gaps in the expert’s knowledge of the case, is highly relevant when preparing to challenge the witness’s evidence.
On occasion, an expert may well have conducted their interviews with a client and have received information far too late for them to have asked or explored issues in the documents. This may well have had an impact on the analysis and recommendations in their report.
If it can be shown that there has been a failure in this part of the process, it will demonstrate that the expert witness and their recommendations to the court may not be as persuasive as first thought. It also highlights any opinions that may be based on incorrect facts if the relevant statements have not been read by the expert.
2. Do some research on the relevant expert or professional witness. It is always helpful to carefully check their CV - do they actually have the necessary skills and qualifications to fully understand the issues the court is being asked to address?
For example, a consultant paediatrician may start to comment on issues surrounding attachment between a parent and a child which are not within their field of expertise. Or a social worker may go beyond their concern and make references to mental health issues or psychological behaviour of the client. It is always useful to check in what area the expert has trained or undertaken research. In some cases, an expert can be challenged for going beyond their field of expertise.
3. Check whether there is an industry standard framework for the relevant assessment process. This could be a parenting assessment undertaken by a social worker, a cognitive function assessment, a capacity assessment or a general full psychological assessment. In any case, the relevant witness may not have adopted the standard practice within their field.
The witness could then be challenged as to why they had not used national best practice guidance within their own field. Also cross-reference the expert’s professional body and see if the assessment/report conforms to the best practice guidance.
4. Consider how many and the quality of the meetings the expert has had with your client. Have they had only one meeting or a number of meetings? What was the duration of those meetings? Is it sufficient? Also, what was your client’s frame of mind during the assessment process? There could be an external reason for them performing badly during an interview session (eg were they ill?).
5. Consider whether reasonable adjustments were made for your client.
First, consider the number of meetings the expert had with your client. Was it a one-off meting, and if so why were additional meetings not offered to your client? Determine how long each meeting was supposed to last and whether the meeting has lasted for the full planned duration. Again, if the interview times were quite short or too long, this may have had an impact upon your client’s ability to engage with the expert.
If my client is vulnerable, has learning difficulties or mental health difficulties, I would be trying to establish whether any appropriate adjustments had been made for them: for example, using visual aids or having breakout sessions, or offering a number of sessions as opposed to a full day assessment.
If the client attended any meetings late, is there a reason for this, eg ill health, public transport delays etc?
6. Determine whether any parts of the assessment process were delegated by the expert to an assistant or work colleague, and if so, whether this was entirely appropriate.
If the expert is drawing conclusions, for instance, from psychometric assessment tests or any other mechanism, then it is important that appropriate supervision was given if the client had been interviewed or had spoken to more than one expert during the preparation of the report.
On occasion, an expert may delegate tasks to a junior member of their team, for example, to read the papers and summarise them, or they may work in pairs. It is important to identify who has done what in the preparation of the report, as you may wish to call more people than just the author of the report if there are factual inaccuracies.
7. Ask for the expert’s notes of all meetings and discussions between your client and any other party or professional witness. This helps to verify whether all factual content is correct. Notes often provide more detailed contemporaneous evidence, especially if they are prepared at the time of the meetings.
8. Consider whether the expert has repeated factual information having read the court bundle and statements and pleadings within it. Have these been accurately recorded? Has the expert misunderstood the facts in the case? Has the expert perhaps overlooked a key fact which may have influenced their analysis and recommendation?
Remember there may be disputed facts in the case; it is for the judge to make decisions of fact, not the expert.
9. Discuss with your client the section of the report where the expert witness has recorded your client’s discussions during the assessment process. Does your client agree with the summary of the discussions recorded in the report? Your client may well dispute the factual recordings of the interview process. If so, these need to be identified and clarified with the expert during cross-examination.
10. Ask the witness whether they have considered alternative recommendations.When challenging actual opinions and recommendations, it is often helpful to put to the witness whether they have considered the alternatives and what factors led them to reach the conclusions they have made. In some instances, experts will often focus on the negatives to justify a negative conclusion. However, it is important to focus on your client’s positive case and to therefore put the positive examples to the expert and ask them to confirm that they agree a number of positives do exist.
The purpose of this line of questioning is to have the expert concede that there are positives in your case and that they have not given enough weight to them. Alternatively, in your closing submissions you can highlight that the expert has failed to consider the positives in their report and has attached insufficient weight to them.
Remember, less is more, so above all else, keep your questions relevant and to the point. The day that you can stand up in court and say to the judge, ‘I have no questions for this witness, Your Honour’, will be the day that you begin to feel truly confident in your abilities as an advocate.