Direct Examination of Expert Witnesses

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 199-214

DIRECT :

EXPERT WITNESSES

CHAPTER 26

DIRECT EXAMINATION

OF EXPERT WITNESSES

§26:01 New York Trial Notebook 26-2

DIRECT :

EXPERT WITNESSES

I. GENERAL POINTS

A. FORM OF QUESTIONS

§26:01 Leading Questions

New York adheres to the normal rules of direct

examination when a lawyer is questioning his

or her own expert, including prohibiting leading

questions. As with lay witnesses, a certain amount

of “innocent” leading of experts to get through

preliminary matters is allowed, particularly when

the expert is giving qualification testimony. [See

§26:34.] Usually the other side is as anxious to get

the expert’s qualifications out of the way as you

are, and will not delay matters; it is rare indeed for

a question like, “Please tell the jury about academic

honors you have received,” to be objected to as

leading.

§26:02 Adjust Questions to Fit

Circumstances

The questions put to experts must be adjusted

to fit the issues, the sophistication of the jurors, and

the expert’s court experience. Some experts require

no more than the following to elicit their testimony:

• What work have you done in this case?

• Do you have an opinion to a reasonable

degree of certainty? [See §26:03.]

• What is that opinion?

• Please explain to the jury how you arrived

at that opinion.

Other experts require continual short questions

to keep the flow of the testimony going. You must

decide which approach will work best in your case

and prepare the expert accordingly.

IN PRACTICE: Keep Juror’s Focus on Witness,

and Off You

The basic principle in direct examinations

of keeping the jurors’ focus on the witness,

rather than on the lawyer, is at least as

important with an expert’s direct testimony

as with a lay witness’s. If the jurors are

engrossed in your expert’s monologue,

permit it to continue. However, if you sense

the jurors are losing interest, interrupt and

change the cadence of the testimony.

When measuring the jurors’ attention, be

particularly sensitive to the expert lapsing

into obscure technical jargon. Break in with a

question like, “Excuse me, doctor, you used

the word _____. Could you please tell us, in

English, what that means?”

NOTE:

Modern trial practice is sometimes to have

medical experts testify via video deposition,

which is routinely arranged by agreement

between counsel. However, if the expert is

available and cost is not an overriding factor,

it is usually far preferable for the offering

party to have the expert testify live.

§26:03 Certainty of Opinion

Counsel questioning their expert on direct

have long asked if the expert has an opinion with

a “reasonable degree of (medical) (engineering)

(scientific) (whatever) certainty,” and after the

expert answers affirmatively, have asked “what

is that opinion?” [See Ulma v. Yonkers General

Hospital, 53 AD2d 626, 627, 384 NYS2d 201,

203 (2d Dept 1976) (preferable foundation for

eliciting a medical expert’s opinion is that the

opinion be stated with a “reasonable degree of

medical certainty”).] However, these specific

words (and whatever connotation goes with them)

are not essential to an expert stating an opinion.

Some experts are reluctant to answer affirmatively

any question that sounds to them as if they are

expressing an opinion with absolute “certainty.”

Matott v. Ward, 48 NY2d 455, 459, 423

NYS2d 645, 647 (1979) held that the appropriate

inquiry in determining whether to admit an

expert’s opinion into evidence is whether the

expert demonstrates “a degree of confidence in

his conclusions sufficient to satisfy accepted

standards of reliability.” “It must be ‘reasonably

apparent’ that the expert witness ‘intends to

signify a probability supported by some rational

basis.’” “Magical words represented by the phrase

‘reasonable degree of medical certainty’” are not

necessary as long as the testimony “conveyed

equivalent assurance that it was not based on

either supposition or speculation.” [Matott, 48

NY2d at 463; see John v. City of New York, 235

AD2d 210, 652 NYS2d 15 (1st Dept 1997) (no