Long Answers to Short Questions: Crossing the Expert Who Can't Say "Yes"

• Pages: 30-31
• Date: 01 October 2023
• Author: Hon. Mark A. Drummond (Ret.)
• Subject Matter: Civil Law

Published in Litigation News Volume 49, Number 1, Fall 2023. © 202 3 by the American Bar As sociation. Reprodu ced with permission . All rights reser ved. This information o r any portion ther eof may not be copied o r disseminated in any form

or by any means or stored i n an electronic database o r retrieval syst em without the expr ess written co nsent of the American B ar Association.

By Hon. Mark A. Drummond (Ret.), Litigation News Associate Editor

In the musical Oklahoma, Ado Annie promises two dif-

ferent suitors that she will go to the dance with them.

She laments her di lemma in the song “I Cain’t Say No.”

The song reminds m e of a phenomenon we see in cour t

with some exper ts. Experts who seem to have a con-

stitutional in ability to answer simple questions with a “ye s”

or “no.” The causes are threefold. Fi rst are the “hired gun”

experts who wi ll say anything to earn their f ee. Second are

experts who th ink that using multisyllabic words wi ll make

them sound more exper t, which is wrong. And third is cou n-

sel inviting long an swers by the words we choose.

There are ve parties to any cross- examination. You, the

expert, the judg e, opposing counsel, and, most impor tantly,

the jury. It really doesn’t matte r what four of the parties

think. A ll that matters is what the jury th inks the answer

should be.

In a past column, I out lined the template I used when

crossing an exp ert. I look at exper t evidence as two isla nds.

There is the “Isla nd of Expert Opinion,” which is a very

dangerous island! Un less I could envision the expert saying ,

Long Answers to Short Questions:

Crossing the Expert Who Can’t

Say “Yes”

“You’re right; I’m wrong,” I tended not to venture onto that

island. I let my own exp ert ght on that island, and I fought

on what I call “The I sland of Everything Else” (T IEE).

One TI EE topic is “things agreed upon.” Let’s say you’re

defending an injur y case and you know the plaintiff wa ited three

weeks before going to the ch iropractor. You a sk the simple ques-

tion, “Ms. Jones waited t hree weeks to come see you, true?”

Now what is the response i n the real world? It is usually

not the chiropractor slowly noddi ng his head in agreement

and saying, “Yes, counsel…s he waited three weeks.” In the

real world, this usu ally invites a short lecture. T he lecture

begins, “N ow counsel, it’s not atypica l for soft tissue injuries

to fail to manife st themselves, and waiting might ac tually be

benecial due to…” The exper t’s a nswer concludes minutes

later. How do you handle this?

Ask a Better Q uestion

My question included the word “waited.” This is the opening

the expert is looking for. Totally factual questions avoid the

problem or at least show that the expert is overreaching.

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