Prescription for powerful expert testimony: Brilliant direct and cross-examinations take proper preparation. Follow these guidelines to make your expert's testimony compelling and to discredit your opponent's expert.

Lawyers rely heavily on expert testimony to provide powerful, convincing evidence. Whether you're getting ready to put your medical expert on the stand or cross-examine the defense expert witness, proper preparation will help you make the most of the moment.

Start by making sure that your expert understands the legal elements that you have to prove in order to win your case and how his or her testimony will support this effort. If an expert will not be able to testify truthfully to the opinions that will establish these elements, you need to find that out sooner rather than later--certainly not during the defense's cross-examination.

You also don't want your expert to contradict his or her own deposition statements, opening the door to impeachment. Since many depositions occur months--even years--before trial, you have to refresh an expert's memory before putting him or her on the stand. Outline the order in which you intend to ask questions at direct examination, and review it with your expert before trial.

Arm your expert with any legal language that the evidence rules require, and make sure he or she is comfortable using it. Your experts may have to testify, for example, that the nurses "fell below the required standard of care by not doing x, y, and z," not just that they "weren't doing their job."

Also make sure that your experts understand the standard of proof that their testimony must meet. In Florida, for example, the "reasonable probability" or "more likely than not" standard is defined as more than 50 percent.

Sometimes experts get hung up on the idea that nothing is certain, and they may make inappropriate concessions if the defense attorney asks whether their opinions are "within a reasonable degree of certainty." If your state requires reasonable probability rather than reasonable certainty, make sure that your expert knows the difference. Quickly object if opposing counsel attempts to use any other standard, and have the court instruct the witness and opposing counsel on the proper standard.

Finally, have someone whose trial abilities you respect cross-examine your expert before the trial. A mock cross-examination with someone who can act as the expert's worst nightmare will help minimize surprises at trial.

When you actually face each other in the courtroom, this preparation will help you start off strong.

Kick off direct examinations by asking your expert witness to explain his or her qualifications, including:

* school(s) attended; area(s) studied

* degrees, awards, certifications, or honors earned

* employment history

* job functions that relate specifically to matters in the case

* literature or textbooks that he or she has written or cowritten

* presentations, teaching, or other academic work

Your expert should give specific information about his or her experience. A surgeon, for example, might want to explain that he or she has performed more than 10,000 surgeries; a nurse should explain that he or she is involved in daily, hands-on patient care.

Then, turn to your expert's opinions in the case. List them one by one on a whiteboard or flip chart. Ask, "What items or information have you relied on in reaching these opinions?" Have the expert describe these in detail--medical records, depositions, the defendant facility's internal guidelines, and so forth--so that you can establish the evidentiary foundation for the opinions.

Now would be a good time to mention the expert's prior relationship with your office and how much he or she is charging you to review and render opinions in this case. Ask whether the expert charges all attorneys the same rate and what percentage of time he or she works for plaintiffs compared to defendants. It is best to address these issues head-on and minimize their impact before the defense attorney gets a chance to make them sound important.

Then, go back to the expert's opinions. Have the expert define any medical or other technical terms that the jury needs to know to understand his or her testimony. If appropriate, write the definitions on the board. Ask the expert a hypothetical question based on the facts that you have presented or will present in your case. For example,

   Mary Brown went into labor at 9 a.m. By 4
   p.m., she had dilated to 8 cm. By midnight
   she was not fully dilated, had developed a
   fever, was suspected to have chorioamnionitis,
   and was experiencing uterine
   tenderness. The fetal heart strips were repeatedly
   showing late and variable decelerations,
   with a slow return to baseline,
   and decreasing beat-to-beat variability.
   Assuming that all the facts that I have just
   given are true, do you have an opinion
   within a reasonable degree of medical
   probability as to whether Dr. Townes's failure
   to order a cesarean section by 6 p.m.
   was below the standard of care?

Repeat this process for each of the opinions you wrote on the board at the outset of the expert's testimony. Include only those facts in your hypothetical that you can prove, and always ask for the opinion within the appropriate standard of probability. Otherwise, your expert's opinions can be stricken from the record.

Sometimes, you will need more than one expert to testify. In obstetrical malpractice cases, for example, you typically need an obstetrician to establish the standard of care and a pediatric neurologist or neonatologist to tie up causation.

Experts should refer to the evidence that served as the basis for their opinions. If you are discussing medical records, they can point out the critical information on blowups of documents or on a projection screen.

Expert testimony can be dry, so get your witness moving. You can ask, for example, "Doctor, can you show us what you mean?" Have your expert step down from the witness stand--with the court's permission--to explain evidence on blowups, handle anatomical models, or draw on the flip chart. Taking an interactive approach to the testimony will help the expert entertain as he or she educates.

Before you sit down, check your outline to make sure you have covered all your points with the witness and used all the documents you intended to, moving the necessary ones into evidence with his or her testimony. Arranging all your documents on your table in the order that you intend to use them facilitates this step. Finally, recap by asking your expert whether each of the opinions he or she has rendered is within a reasonable degree of probability.

Defense expert depositions

Properly preparing yourself for defense expert depositions will help you conduct a brilliant cross-examination. Review the expert's entire file, including pleadings, discovery, correspondence, and notes of conversations with other witnesses. Have your office conduct informal discovery on the Internet or through a private investigator. At a minimum, get a copy of every publication the expert listed on his or her curriculum vitae. Also remember:

* Depositions are the only time you should ask defense experts open-ended questions.

* Ask a series of specific, leading questions that require the expert to concede to facts and opinions that help your client.

* Use the literature to spin out the logical extremes of the expert's opinions until they sound absurd.

* Try to get the defense expert to agree with specific opinions that your expert has rendered. If he or she refuses, ask why--this may help you bolster weaknesses in your own expert's testimony.

You'll want to use the opponent's strength to your advantage, as an Aikidoist would in a martial arts encounter. If the defense expert seems to have unimpeachable academic credentials, ask how much time he or she spends in teaching and administrative duties versus doing the daily work involved in your case. Experts who look impressive on paper sound less so if you can point out that they deal with concepts and books, not patients.

If the expert has decades of experience, make him or her admit that most of the technology at issue in your case was not even taught in medical school when the expert was a student, so his or her knowledge is probably limited to what could be learned at weekend seminars put on by pharmaceutical and medical device companies pushing their products.

Keep in mind, however, that a deposition is not a fishing expedition. You should go in knowing what you hope to achieve and come out with more of the ammunition you'll need to make your case at trial.

Summarize the defense expert's deposition and index it according to topic so you can use it as a quick reference to gain control during cross-examination. The discussion probably will have bounced around from topic to topic during the deposition; having all references to a sin--topic--such as "bias" or "fetal heart strip interpretation"--in one place will keep you from fumbling at a critical moment during trial.

You can organize your cross by using a shortened version of this index that contains only the most damaging admissions and most important points that you want to make. Keep the fuller index as a backup in your trial notebook in case something comes up during the expert's direct examination that makes other deposition testimony suddenly more relevant.

Cross-examination techniques

When it is time for you to conduct your cross-examination, all your preparation will optimize your performance. Showing the jury why this witness cannot be trusted should seem effortless. Remember, the courtroom belongs to you. Do not be arrogant or rude, but do speak with confidence and authority. Before you start, make sure you have everything you need at hand and take as long as you need to set up your props.

Ask only leading questions. Open-ended questions give the defense expert a chance to score points and feel in control. Avoid getting into a give-and-take interaction--keep it simple. Introduce one new fact at a time to keep the questions short, the answers clear, and you in control. The more long-winded the answer, the harder it will be to impeach the witness if necessary. Keep a rhythm and a cadence going, but pause now and then for effect.

Ask the easy questions on bias first. The defense expert has to disclose how much money he or she has made from testifying in court and how often he or she has worked for the other side. These questions will help you set up a pattern of the expert agreeing with you and will remind the jury of his or her partisanship.

Then, move on to the line of questioning in which the expert has to admit facts or elements that benefit your client--the ones you already locked into deposition testimony or that are matters of common sense. For example, have the expert admit that the records show that all your client's prenatal testing, as well as her testing on admission to the hospital for labor, indicated that her baby was doing fine. Get the expert to admit that the defendant was the physician responsible for your client's care during labor, and that when an infant is not getting oxygen to his or her brain, every minute counts. If the defense expert refuses to admit the obvious, his or her credibility will be undermined. Have your index of deposition testimony ready to go for impeachment purposes if he or she resists.

As you make points that help your client, write them on the board or flip chart. Seeing things in writing solidifies their meaning, and the written words stay in jurors' sight for the remainder of that expert's testimony, serving as a constant reminder.

After you have gone through the basics of bias and have obtained concessions that benefit your client, turn your attention to discrediting the witness--or at least neutralizing his or her opinions. Use emotion and drama where appropriate, but use them thoughtfully or they lose their effect.

Many defense experts testify regularly; they know how to cross swords with an attorney and come out looking good. Do not give them the opportunity to take you into their territory of authority and expertise. At this point in the case, you should have a good handle on how far you can go with a witness without putting your client at risk.

Each question should build on the previous one so the jury can follow your theme--that the expert is not credible and the story he or she told in direct examination has major holes. To this end, you can jump around a little more than you would in a direct examination and mix up the usual flow of separate topics so that the witness is not sure what comes next.

Still, your questions do need to flow logically. Admissions that are not related are not nearly as effective as a series of admissions that follow a logical sequence within topics. Also, avoid asking questions that will prompt objections, which will break your flow.

Most important, know when to stop. If you get the critical concession, sit down. If you have obtained as much as you reasonably can expect to get from this expert, sit down. Always end with a powerful question or series of questions that will put your client in a favorable light. Write this closer down so that even if you are at a loss for words, you have something positive and helpful to end with.

Preparing yourself well for a cross-examination will help you make jurors question the defense expert's credibility. Likewise, working with your own medical expert before trial will ensure that jurors find him or her knowledgeable, trustworthy, and likeable. As in so many other areas of trial practice, your success with experts depends heavily on the work you do before you walk through the courthouse doors.

DEBORAH J. GANDER is a partner at Colson Hicks Eidson in Coral Gables, Florida. She can be reached at [e-mail].