Winning the Case Through Cross-Examination of the Expert in Oral Discovery

Some Canadian jurisdictions historically have not permitted oral discovery of experts who are non-parties to the case.  Newfoundland and Labrador is not one of those jurisdictions; our practice has included oral discovery of third party testifying experts since the oral discovery rule was introduced 30 years ago.  Using medical malpractice cases as a paradigm, my experience is that cross-examination of the experts in oral discovery (or deposition) is where the case is won or lost.  I believe my opponents, the very able lawyers who represent the defendant doctors in such cases, would agree.

The key to making effective use of the crucial opportunity for pre-trial oral discovery of experts is the skillful use of cross-examination.

Cross-examination is a matter of technique which can be reduced to certain basic principles.  Practitioners follow essentially two methods of discovering the evidence of an adverse expert:  the interview method and the cross-examination method.  The purpose of the interview type of discovery is to literally discover or learn of the expert’s opinions and the foundations for them.

Success in most civil cases, and particularly in medical malpractice cases, is defined by settlement, and the interview technique is not calculated to produce a settlement.  The cross-examination technique of discovering the adverse expert is calculated to produce a settlement.  Therefore it is the technique which ought to be used by any lawyer whose goal is to manage risk and produce a satisfactory outcome for the client.

The cross-examination technique can be described in three simple cardinal rules:

(1) ask leading questions only
(2) establish one fact per question
(3) move toward an achievable goal.

The disadvantage to the examining lawyer of the cross-examination technique of conducting discovery of the adverse expert is that it is much more time consuming and work intensive than the interview technique.  However it is much more likely to lead to settlement.  This technique locks the expert into testimony that will be virtually impossible to change at trial.  The other side’s lawyer will report the result to the insurance company or defence organization, and it will be part of the paper record for evaluation of the case at mediation or judicial settlement conference.

Compared to the enormous time and effort, expense, and risk of trial – the malpractice defendant wins 80% of the time – the investment of time and effort in preparing a discovery of the adverse expert by the cross-examination technique carries a guaranteed return.  If the plaintiff lawyer has carefully investigated the case for merit before litigating, the odds are high that discovery is where the merely winnable will be turned into a winner.  Sometimes the case will not look like a winner, and the time to have a hard but honest discussion with the client has arrived.  Either way, the return on investment in the cross-examination technique is irresistable.