When Cross-Examining an Expert, Follow the Rules (Most of the Time)

Litigation attorney Dan Small published a column in Massachusetts Lawyers Weekly continuing his series on the Farmer Grain elevator explosion criminal case and the lessons he gleaned from it. This article focuses on cross-examining expert witnesses and the rules surrounding them. Mr. Small recounts that during the trial, the defense counsel's expert witness gave a brief, streamlined presentation, one that he could easily have left to his own expert to counter. However, a nagging voice in his head told him the expert's analysis was too smooth, and in violation of the late Irving Younger's "Ten Commandments of Cross-Examination," he began questioning the witness. After a couple of "disastrous" questions, he realized the expert's testimony was "only an inch deep," and he proceeded to spend the next hour methodically tearing it down. The experience taught him the importance of listening to one's instincts; although rules exist for a reason, he says, trial lawyers are the captains of their ships, and if they know their case and believe in themselves, bending or breaking the rules from time to time can prove successful.

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