A powerful cross-exam of your opposing party’s key expert can be pivotal in your case, especially when a trial comes down to the proverbial battle of the experts. In the latest episode of Trial Technique Spotlight, Shane Read, one of the nation’s foremost trial presentation experts, discusses a framework that can be used to structure a powerful cross-exam. And he highlights how Elizabeth O’Neill adeptly used an element in that framework when cross-examining an asbestos expert, en route to securing a defense verdict in a mesothelioma trial.
Read, with a background that includes more than 100 trials as an Assistant US Attorney, says a helpful way to structure an incisive cross-exam is by building it around one or more of five elements that, combined, form the acronym CROSS.
C - CREDIBILITY - Can you cross-examine the expert on their lack of credibility?
R - RESTRICT - Can you restrict the damaging testimony that was given on direct?
O - OUTRAGEOUS STATEMENT - Is there an outrageous statement you can elicit on cross that you can then use in closing?
S - STATEMENTS THAT ARE INCONSISTENT - Are there any inconsistent statements this expert has made in the past that you can highlight?
S - SUPPORT FOR YOUR CASE - What ideas, opinions, and facts can this expert acknowledge on cross that support your case?
Shane says one of the benefits of this approach is its wide applicability. “You can use it with any expert,” he says, adding that, while not all of the elements will apply in every situation, “at least one will, and maybe all five.”
And Shane highlights how Womble Bond Dickinson’s Elizabeth O’Neill used the “C” in CROSS by undercutting the credibility of the plaintiff’s expert in a 2021 trial over the mesothelioma death of a plumber.
The plaintiff contended his father’s exposure to asbestos in water heater gaskets led to his mesothelioma death. And at trial, one of the plaintiff’s key experts testified concerning the link between asbestos and water heater gaskets.
O’Neill opened her cross of the expert, a University of Georgia alumnus, with a joke about an upcoming football game between UGA and the University of South Carolina that brought laughs from the entire courtroom, expert and judge included. She then moved quickly to a series of sharp questions on the expert’s qualifications and background. In this early stage of cross, O’Neill had the expert admit that he was not a licensed industrial hygienist, that he had never done real-world air monitoring on job sites, and that he was not an expert on water heater elements generally, among other admissions.
“She just went down a laundry list of things to undercut the expert’s credibility,” Read says, adding that O’Neill bolstered the cross by ensuring jurors understood the technical terms key to her questioning. “And I love the way, when she got to big words such as pulmonologist or pathologist, she explained that for the jury.”
O’Neill’s cross-exam of the expert ultimately helped clear the defendant water heater supplier. And the opening few moments of that questioning is an excellent example of the first element in Read’s CROSS framework for structuring a strong cross exam.
Read’s analysis of the CROSS framework is part of CVN’s new series, Trial Technique Spotlight, with Shane Read.
Read is a nationally recognized expert and award-winning author who has helped thousands of lawyers transform their deposition, trial, and oral advocacy skills through in-house training programs, one-on-one coaching, and keynote speeches. And in each episode of Trial Technique Spotlight, he uses CVN courtroom video to detail the verdict-winning trial techniques the nation’s top attorneys use, and how to best use them in your own cases.
Stay tuned for future episodes throughout each month.
Email Arlin Crisco at acrisco@cvn.com.
Related information
Watch past episodes of Trial Technique Spotlight with Shane Read
Learn more about Shane and how he helps trial lawyers at www.ShaneRead.com.
Watch the full trial discussed in this episode, Manning v. Gould Pumps Inc.
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