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Here's
What Your Colleagues have to say about
Cross-Examination:
The Comprehensive Guide For Experts
By
Steven Babitsky, Esquire, and James J. Mangraviti, Jr., Esquire,
© 2003 SEAK, Inc.
"If you
have ever wondered how to behave under cross-examination, what questions may be
asked, how lawyers think about their strategy, how to prepare, etc.., or ever
wondered if you might even want to qualify as an expert witness then this book
is for you.
As
appraisers we have had some harrowing experiences with court cases. The
horror stories have appeared in the trade journals with increasing regularity.
This book by two experienced trial attorneys delves into the court process with
emphasis on how expert witnesses are examined. It explains the thinking of
the opposition lawyers, some of the trick questions they may ask, as well as
suggested answers. It explains how the expert should prepare, how juries
may be swayed, how your credibility may be called into question and much more.
It does
all this with chapters which include examples of cross-examination and trick
questions, which if handled correctly, can even help sway the jury.
Many of
the questions used as examples apply to the medical profession, but it is not
too difficult for our readers to transpose some of these questions into question
which may be asked of appraisers. It will make you want to increase your
expertise so that you will not fall into any of the traps. The more you
read the more you will want to keep reading.
This is
an update of a previous book by the same authors in 1997. In this update
they begin with the major points they will address and in the following chapters
supply the details of the points mentioned. The organization of the book
lends itself to reading through in page order, or choosing chapters you are most
interested in.
This
book should be in the library of every appraiser and should be reread each time
they read one of the horror stories to see if any of the mistakes may have been
corrected with better preparation.
Howard Rubin
"Most
physicians avoid medical-legal work like the plague. The thoughts of
being humiliated by a smarmy attorney or testifying against another
physician are enough to make most physicians flee to the comfort and
familiarity of their practices.
Over the
past 20 years I have done a modest amount of medical-legal expert
work-primarily because my colleagues fit the description above! This
work has ranged from independent medical examinations (mostly in
occupational medicine) to malpractice litigation to adventure or
high-altitude accident liability. In reflection I have found the work
stimulating and challenging and have also felt that it has, in part, been a
responsibility to our profession.
I have
always followed these rules: (1) never become involved in a case unless you
do feel like an expert, (2) "call them like you see them" and never get
swayed by what the attorney wants to hear, (3) don't do cases just for the
plaintiff or defendant sides (don't get a reputation as a "hired gun").
Also, I have often been asked by plaintiffs' counsels to look at a case to
see if it has merit, which has in numerous cases allowed me to say, "No,
this is too "gray." I don't think there is enough here to drag a
family through the cost and anguish of a prolonged proceeding." That
approach is a service to the encumbered system. Finally, I have found
that more than 95% of the attorneys I've encountered to be smart, educated
on the topic, honest, and enjoyable to work with! In my experience,
the image of "the lawyer" has not been true. On the other hand, if you
are an expert, you can turn the tables on a poorly prepared attorney and
take some solace in that.
One can also
pick up a lot of tricks along the way. In that light I found
Cross-Examination: The Comprehensive Guide for Experts to be a superb and
extensive handbook for physicians entertaining the idea of becoming involved
in medical-legal expert testimony. Despite its length and some
redundancy I found myself reading enthusiastically through the numerous
examples of question-and-answer scenarios one might encounter, which include
tips on how to respond well, honestly, and clearly, as well as how to be
"one-up" on the attorneys.
The
organization helps the reader to see issues from both the physician's and
the lawyer's sides. Chapters 2 and 3 describe how an attorney prepares
and how a physician should prepare for depositions and trials. Chapter
4 describes the juror's perception of what is going on and the techniques to
communicate with the jury thought one's testimony. The remaining
chapters (5-10) further delineate the legal limits of the process, tactics
to defeat the counsel's cross-examination, the handling of trick questions,
and techniques to become a "dangerous" or "bulletproof" expert witness.
Each chapter has an executive summary at the beginning and an extensive
example of an actual trial question-and-answer session, with evaluation of
poor and excellent responses. The book teaches one to listen very
carefully to every word of the questions, to respond clearly and accurately,
and to avoid being cornered. Most importantly there are excellent tips
on how to avoid trick questions and in some cases turn the tables, leaving
the attorney standing empty in front of the judge and jury. This book
is very helpful for experts who come from either the academic or practice
setting, both of whom can be extremely valuable witnesses.
Despite its
length and boring facade (looks like it belongs in some legal library) this
book is a must for physicians-both novice and seasoned-in this arena of
medical-legal work. Reading this book should diminish one's fear of
the challenge in an unfamiliar setting. My hat is off to the authors."
Melvin A. Welch, Jr., MPH, RRT-NPS
Santa Monica College
"Written for
expert witnesses of all fields, Cross-examination: The comprehensive guide
for experts is 414 pages of valuable resource for experts from the ‘novice’
to ‘seasoned veteran’ of courtroom testimony. Written from the perspective
of the attorney, this publication generates insight in to tactics of
counsel, and strategies for surviving the cross-examination.
Following an opening chapter devoted to providing an outline of the book,
Chapters 2-4 set the tone for book, looking at how attorney’s prepare for cross,
how the expert should prepare to be examined, and how jurors view the expert
witness. Chapter 2 takes a look at how the attorney prepares for the cross,
allowing the expert to gain insight on the thought process of their
inquisitors. Armed with this newfound knowledge, Chapter 3 discusses how the
expert can better prepare for cross-examination, while Chapter 4 views the
expert through the eyes of the juror, helping the witness understand how to best
present themselves in the courtroom.
Chapters 5-6 are designed to prepare the expert for the different types of
questions, and the structure of misleading questions, asked on
cross-examination. Chapter 5 discusses advanced techniques for withstanding
cross-examination, while Chapter 6, as the largest chapter in the book, provides
extensive overview of the types of questions commonly asked in
cross-examination, including sources of potential bias, credibility issues,
conflicts in relationships, qualifications of the expert, the basis for an
opinion, and marketing activities.
Chapter 7 is of particular interest to the expert as a brief discussion of legal
issues involved in serving as an expert is discussed. Included in this section
are the limitations to the types of questions allowable in cross, and the trial
judges role as a gatekeeper to these questions.
Chapters 8-10 offer specific strategies for overcoming the different tactics
used by counsel, answering difficult questions, and the criteria for becoming a
dangerous expert witness. This trilogy of chapters advises the expert on
handling trap-inducing questions and defeating counsel’s cross-examination
tactics. Finally, the authors conclude with advanced strategies for becoming a
“bulletproof witness”, the ultimate goal of any expert called to testify.
The
authors are Steven Babitsky, Esq., and James J. Mangraviti Jr., Esq, experience
trial attorney’s with extensive publication history. Previous publications
include How to excel during depositions: techniques for experts that work and
Writing and defending your expert report: The step-by-step guide with models.
The authors, president and vice president of SEAK, respectively, also are
trainers of expert witnesses across the United States and Canada.
Cross-examination: The comprehensive guide for experts is recommended for
vocational experts who are preparing to sit for the first time as a witness, and
for seasoned experts seeking to add a calculated edge to their testimony. The
handbook combines the simplicity of read and lessons analogous to Brodsky’s
Testifying in court: Guidelines and maxims for the expert witness with Deutsch’s
A guide to rehabilitation testimony: the expert’s role as an educator. While
Brodsky and Deutsch are experienced expert witnesses, Cross-examination: The
comprehensive guide for experts, provides the unique perspective of experienced
attorney’s. As such, it is a valuable resource for any professional with
designs on serving as an expert witness in a court of law."
Craig Johnston
The Ohio State University
"As expert
witnesses, financial experts understand that with every engagement letter,
the possibility to present testimony to the judge or the jury also arrives.
Trial testimony can be one of the most difficult parts of any engagement;
hence fees for time spent at trial are higher than fees for time spent
arriving at your opinion. While the work performed to arrive at the
opinion is important, how witnesses perform on the stand can be crucial to
the case as well as to the expert's professional reputation. A recent
book Cross Examination: The Comprehensive Guide for Experts, by
the attorneys Steven Babitsky and James J. Mangraviti, is a good resource
for expert witnesses, which will help them provide better testimony when
they appear before the judge and jury.
Cross
Examination is 414 pages and is hardcover, bound in black leather with gold
embossed lettering. It has the look and feel of a professional
publication. Within its covers, the authors discuss over ten chapters
what to expect during cross-examination, how to prepare, and how to
successfully answer questions on cross-examination.
Cross-examination is written in an easy to follow fashion. The authors
make a point, provide examples, and emphasize the lesson to be gleaned from
the examples. While this book discusses cross-examination techniques
in a general fashion, specific examples from many litigation areas,
especially medical malpractice, are used to underscore the lessons.
Unfortunately, there are few examples from the business appraisal or lost
profits world. However, the lack of such examples does not diminish
the book's value. The points the authors wish to make and the examples
they use provide the business appraiser and financial expert with many
important things to consider.
Babitsky and
Mangraviti drive home several themes. These include answering opposing
counsel's questions truthfully, but artfully, especially questions regarding
the expert's fees and clients; ensuring that the expert's curriculum vitae
is up to date and accurate; and that the expert's marketing materials,
including their website, are presented in a neutral fashion. These
themes are repeated through several of the chapters, and by the end of
Cross-Examination the reader understands that the authors have
encountered trouble with experts in those areas.
Overall this
book is done well, and financial experts will be well served having read
this book. It provides experts with useful lessons, which can be
immediately implemented in their practice and help make them better experts
on the witness stand.
John Stockdale, Jr.
Valuation Information, Inc.
"Steven
Babitsky had done it again with an excellent book written to help the expert
witness excel in his work!
There are four primary areas in which an expert witness must excel in order
to succeed-their own field of expertise; writing expert reports; giving
quality depositions; and, giving credible court testimony. Perhaps the
most difficult for many experts is this last item, and especially handling
oneself well during cross-examination.
Cross-Examination: The Comprehensive Guide For Experts published
by SEAK, Inc., and co-authored by Steven Babitsky and James J. Mangraviti,
Jr. provides a watershed of information to make any expert more comfortable
when it comes to preparing for court testimony and cross-examination.
This volume, like Writing and Defending Your Expert Report (also
co-authored by Babitsky and Mangraviti, and published by SEAK, Inc.) is
filled with examples, tips, step-by-step guides, etc.
It is quite surprising that a book with a topic that promises to be quite
dry is actually entertaining as well as educational. I found myself
with Cross-Examination looking forward to each chapter, and reading
it with almost the same interest as a novel. The volume is presented
in a very logical manner, with each chapter covering a broad topic, such as How
to Prepare for Cross-Examination and How to Answer Trick and
Difficult Questions. Then, each chapter is divided into sub-topics
with a narrative and samples on each sub-topic. The only problem with
this layout is that it gets a bit repetitive at times, but the information
is valuable, and the examples are mostly great. A few examples in the
book are a bit extreme (perhaps even silly) to be valuable, but most are
very much on point.
No Expert Witness should be without this volume to be as prepared as
possible for court testimony and the inevitable cross-examination. There is
no longer an excuse for not being prepared for virtually anything one may
encounter in the courtroom.
George Reis
Imaging Forensics
"The
book is stellar … levels the playing field …
I have a successful expert witness practice thanks to the SEAK materials …
The Cross-Examination Guide continue to raise me to a higher level of
expertise."
Orthopedic Surgeon
New York
"The
text skillfully integrates practical instruction with sample testimony
transcript. Of particular value are
the succinct lessons for experts."
PhD, Psychologist
Florida
"A
lifetime of experience in cross-examination reduced to a practical, concise,
easy to understand guide for the expert."
Emergency Medicine
Maryland
"An extraordinary work … An unrivaled fusion of
close-quarters-combat details packaged within a tactical/instructional
framework."
Financial Expert
Oregon
"I
couldn't put it down … I found applicability of the techniques laid out so
clearly, concisely and convincingly. An
expert who does not read this book and heed its advice does so at her own
peril."
Biomechanical Engineer
New York
"The
book has been a great help to me … A must for experienced professionals and
those first timers … I am referring to it now as I prepare for a tough
trial."
Recreational Hazards Forensic Expert
New Jersey
"This
text provides a wealth of information … It raises the bar for the legal
requirements that experts must understand."
Forensic Chiropractor
South Carolina
"Wow!
I wish I had access to this book many years ago.
I learned some of this material by trial and error … Fortunately, I can
now learn more by reading and referencing this wonderful compendium."
Orthopaedic Surgeon
Texas
"This
incredible resource is a must have for experts new to testifying in court.
However, the brilliance of this masterpiece is realized equally by
experienced experts, as the authors blend key concepts and strategy with
examples, leaving the reader with lasting impressions that can be relied upon
quickly and dependably when under the gun.
A monumental achievement!"
Forensic Pathologist
New York
"If you treat patients in auto accidents, you
might some day be called to a deposition, mediation, arbitration or trial.
Insurance company (defense) attorneys may try to tear you up. A new book
by SEAK, Inc. (www.seak.com) should be on your list of possible pre-trial study
guides. Entitled Cross Examination: The Comprehensive Guide for
Experts, this book is one of the few resources I have seen to plan for how to
withstand feared cross-examination by a hostile attorney. Unlike any other
publication I've ever seen, this book covers subjects that you might not have
known were subjects. It is chock full of golden examples of successful and
unsuccessful cross examination testimony. If you have been in depositions,
mediations, arbitrations or trials, or feel you might be, consider buying this
book to have on your shelf. At least make a note of the title and web
site, should the need arise.
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