Ten Commandments of cross-examination[dagger], The

FDCC Quarterly, Spring 2003 by Pratt, Timothy A

C. The Third Commandment: Thou Shalt Take Baby Steps

Patience is a virtue in cross-examination. Delivery of key points is not just a destination, it is a journey on which the jurors should accompany the lawyer. They must understand step-by-step where the cross-examination is headed. It is called pacing; it is called communication.

Here is an example. Assume the case is being tried with an expert who has developed opinions, but has never submitted those opinions for peer review. One way to handle the situation at trial is simply to ask the following question:

Q. Have your opinions ever been submitted for peer review?

A. No.

This exchange gets right to the point. However, if the jury is to journey with the lawyer and understand the point, the following series of questions might be posed, to which the witness will likely answer "yes":

Q. You have heard about the peer review process?

Q. And, by peers, we are talking about people in your area of science?

Q. So, the peer review process involves a review of one's opinions by his/her scientific peers or colleagues?

Q. It allows one to get valuable feedback from other scientists about what they think of your opinions?

Q. It can provide a sense of whether your opinions are generally regarded as supportable and reliable by other experts in your field?

Q. Can this be very valuable in the scientific process?

Q. Does one form of peer review involve standing up at meetings and sharing your views with peers or fellow scientists?

Q. You are letting them know your opinions?

Q. And you are discussing with them the basis of those opinions?

Q. This allows your peers to comment on the strengths or weaknesses of your opinions?

Q. You have been involved in this litigation for five years?

Q. You have, for the last five years, been expressing these opinions in courtrooms around the country?

Q. Have you ever stood in front of a group of your fellow scientists to share with them the opinions you have just shared with this jury on direct examination?

Q. Have you ever, at any scientific meetings, sought feedback from your fellow scientists on whether they think you are right or wrong?

Q. Is another form of peer review the publication of articles?

Q. When you submit an article to a good journal, the article is peer-reviewed before it is published?

Q. By that, I mean that the editor of the journal circulates the article to various scientists for their comments?

Q. By this process, can the editor be more comfortable that the opinions expressed in the article are valid and supported by the evidence?

Q. This, too, can be a valuable part of the scientific process?

Q. Can it be a way of weeding out bad science?

Q. Have you ever submitted a manuscript stating your opinions to ajournai for publication?

Q. Have you even prepared a manuscript stating the opinions you have expressed to this jury?

Q. Have you in any form ever sought feedback from the publication peer-review process concerning your opinions in this case?

Q. So, sitting here today, after five years of involvement in litigation, you have never taken the time to prepare a manuscript and submit it to a journal so that your fellow scientists can determine whether it is even worthy of publication?