27th Oct 24 12:01 pm
JamieEven the most amicable and easiest divorce is complicated and often confusing. When a divorce is not amicable, or when there are high stakes such as high net-worth assets or substance use issues, divorce can become even more complicated and confusing. In these cases, both parties may bring in expert witnesses to prove their case. However, when you hire an expert witness to testify on your behalf, this also means that the other party is able to question your expert. During the cross-examination of expert witnesses, their testimony may be disproven or their qualifications may be called into question. This is why it is important to understand how cross-examining expert witnesses works so that you can be prepared for what may happen. If you would like to learn more about expert witnesses and divorce, an experienced Colorado divorce attorney with Colorado Divorce Law Group may be able to comment on the specifics of hiring an expert witness for your divorce. Call (720) 593-6442 to schedule a consultation.
There are two types of witness examination, whether the witnesses are experts or lay people with knowledge of the case. The two types of witness examination are direct and cross.
Direct examination is the formal interrogation of a party’s own witness. Because the witness is testifying on the party’s behalf, direct examination’s purpose is to get the witness to provide material facts that support the party’s case. This is a friendly type of question, rather than adversarial.
In direct examination, leading questions are usually not allowed. Leading questions are ones that prompt or encourage the answer the individual is seeking. For example, asking a diner in a restaurant, “How much did you enjoy your delicious meal?” would be a leading question because its phrasing prompts the diner to say they enjoyed the meal, even if they didn’t. These questions are not allowed because they could mislead the evidence and it can call the witness’s credibility into question.
Cross-examination is the formal interrogation of any witness called by the other party to challenge or extend their previously given testimony and takes place after direct examination. Per Colo. R. Evid. 611, leading questions can be asked during cross-examination. However, the questions asked during cross-examination must be limited to the subject matters raised during direct examination and questions intended to discredit the witness.
In Colorado, expert witnesses can be brought in by either party or be appointed by the court. Regardless of whether the witness was brought in by the other party or appointed by the court, all expert witnesses can be cross-examined.
The National Institute of Justice explains cross-examination of expert witnesses as calling upon the expert witness to retrace their steps and explain and justify their position regarding their testimony. They may also be asked to harmonize their views in the current case with prior trial testimony, depositions, or writings from other cases in which they may have held different positions.
The purpose of cross-examination is to try to discredit the expert witness or prove that their position is not accurate. This may be done by establishing the expert’s lack of perceptive capacity or application; proving they have questionable character, reputation, or qualifications; establishing a bias, prejudice, or interest in the outcome of the case; inadequate or inaccurate ability to remember the applicable facts; or inconsistency with well-known published authorities.
Technically, as long as it is relevant, a proper foundation has been laid, and there are no other evidentiary objections, new evidence can be introduced during the cross-examination of expert witnesses. However, cross-examination is typically limited to the topics that were brought up during direct examination. This means that new evidence would likely need to be related to a subject raised during direct examination.
A key strategy in cross-examination of expert witnesses is to attack their qualifications. In many cases, new evidence introduced during cross-examination is used to discredit the expert, rather than to try to address the topics raised during direct examination. If new evidence comes to light in your divorce case, you may want to consult with an experienced divorce attorney at Colorado Divorce Law Group to determine how to introduce it into your case.
Fans of legal television and movies may think that cross-examination of expert witnesses, or any witness, is a requirement in any court case. However, in a divorce case, the purpose of expert witnesses, such as forensic accountants, is to provide clarity on certain aspects of the settlement. They are not meant to prove either party “right” or “wrong,” but to provide accurate, provable, factual information to the court that allows the court to make a decision.
As a result, it is not always necessary to cross-examine an expert witness. If cross-examining will not add to the case, there is no need to do it. In fact, by not cross-examining an expert witness, it may minimize their importance by indicating that they are not worth challenging because their testimony is not significant. If the expert witness is unlikely to be shaken from their original testimony or to be discredited, cross-examining them may only reinforce the testimony they have already provided, which is not the effect cross-examination should have.
When cross-examination of expert witnesses is necessary, there are some best practices that can help the process go more smoothly and increase the chances of the cross-examination succeeding in disproving or discrediting the expert.
Cross-examination without a goal is a waste of time and questions. A skilled divorce attorney will determine the goal of their cross-examination before it happens. They will decide they want to impeach the witness such as by proving they lack qualifications, redefining the story by adding perspectives not previously included, proving inconsistencies in their testimony compared to previous cases or writings, forcing the expert to explain their reasoning or to seek agreement on certain facts to simplify the case. There are other goals as well. Once the goal is determined, then it is easier to determine which questions to focus on in order to achieve that goal.
While it may appear as though cross-examination is spur-of-the-moment, a skilled divorce attorney has prepared their questions ahead of time. They have organized their questions to ensure all questions related to a particular point are asked together, and cite exhibits, transcripts or other details that are related to the questions to ensure that they can easily reference them while questioning the expert.
In some instances, there may be some spontaneous questions when an unexpected opportunity arises. For the most part, a successful cross-examination is pre-scripted to ensure that the information being sought is the information provided by the expert.
While leading questions are not allowed during direct examination, they are allowed during cross-examination, and whenever possible, they are the questions to ask. Leading questions prompt a specific answer, whereas open-ended questions allow the expert to say anything. If asked an open-ended question, the expert could provide an answer that does significant damage to a case.
Because the answers to leading questions are already known, the likelihood of the expert not giving the prompted answer and damaging the case is reduced. Leading questions can be used to funnel the expert toward a specific answer or conclusion that benefits the party’s case. However, sometimes open-ended questions can be helpful if the only possible answers will hurt the other party’s case. Individuals who have chosen to hire a lawyer should rely on their lawyer to ask the appropriate questions, and if they have a question they feel should be asked, should suggest it to their attorney. The attorney can either add the question to their list or explain why the question is unnecessary or harmful to the case.
One of the most common strategies of cross-examination is to discredit the witness. One way to do this is by comparing deposition transcripts to the trial testimony. If it is possible to find discrepancies between the two, that can be used to discredit the witness. In addition to deposition transcripts, looking at previous cases where they have testified regarding the same issue and said something different than they have said in the current case can also help discredit them. However, if looking at information from previous cases, it is important to have a full understanding of all the details of those previous cases to ensure that there are no relevant details that could legitimately change the testimony. Because each divorce is unique, it is very likely that there are relevant details that change the testimony, so it is generally a good idea to rely more on discrepancies between the deposition and testimony of the current case than to try to find inconsistencies with past cases.
Direct examination is creating a detailed picture of the case through questioning. Therefore, direct examination can take hours or even days as this image is created. On the other hand, cross-examination is meant to undermine the other side’s case or confirm points in our own case. Undermining the other side or confirming points for our own side does not take hours or days. In fact, it is better done quickly as a lengthy cross-examination of expert witnesses tends to bore everyone and cause them to stop paying attention.
Additionally, knowing when to stop is also critical. Once the goal of the cross-examination has been achieved, it is time to stop. For example, once the witness answers two or three questions that establish that they are missing necessary qualifications or have been inconsistent with their testimony, that is enough and the cross-examination can stop. Continuing to ask questions to see how many other ways the witness can discredit themselves will not result in a new level of discreditation or make the expert look even worse.
There are many reasons you may require expert witnesses as part of your divorce. While there may be instances where one expert can offer information for both parties, many times, both you and your spouse will each want your own expert to support your case. When this happens, cross-examining these experts may bolster your case and damage your spouse’s or vice versa. Cross-examination of expert witnesses requires a delicate approach, knowing which questions to ask and what the intention for the cross-examination should be. If you would like to learn more about cross-examining expert witnesses, or other information about expert witnesses in divorce, contact Colorado Divorce Law Group at (720) 593-6442 to continue this discussion in-person during an initial consultation.
