[Editor’s Note: This article was first published on September 7, 2023. EDRM is grateful to Craig Ball for permission to republish. EDRM is proud to publish Craig Ball’s advocacy and analysis. The opinions and positions are Craig Ball’s copyrighted work.]
I’ll need to dust off the cobwebs as I haven’t been in this space in quite some time! I’ve not had much to say, and honestly, if I didn’t sneak “ChatGPT” into the title, who’d notice? Preparing for a September 20th presentation to an international conclave of forensic examiners in Phoenix, I extensively revised and expanded my guide for testifying experts, now called “Being the Better Expert Witness: A Primer for Forensic Examiners.” I describe it thus:
This paper covers ways to become an effective witness and pitfalls to avoid. They say lawyers make notoriously poor witnesses and I have no illusions that I’m a great witness. But after forty years of trial practice and thirty as a forensic examiner, I’ve learned a few lessons I hope might help other examiners build their skills in court.
In the paper, I discuss the difficulty computer forensic examiners face honing their testimonial abilities because it’s rare to be interrogated by a lawyer who truly understands what we are talking about. Most interrogators work from a script. They know the first question to ask, but not the next or the one after that. Pushed from their path, they’re lost. Computer forensic examiners have it easy on the stand. Deep fakes notwithstanding, computer-generated evidence still enjoys an aura of accuracy and objectivity, and the hyper-technical nature of digital forensics awes and intimidates the uninitiated. Thank you, CSI, NCIS and all the rest! But sooner or later, computer forensic examiners will square off against interrogators able to skillfully undermine ability and credibility. I want them to be ready.
As I’m wont to do, I ambled down memory lane:
“Evidence professor John Henry Wigmore famously called cross-examination “the greatest legal engine ever invented for the discovery of truth.” Apparently, every lawyer who writes about cross-examination is obliged to say that. Likewise, every trial lawyer aspires to do a great cross examination, and every judge and juror aspires to hear one. Yet, as I observed at the start, they are rare.”
“Forty years ago, my boss was on the trial team of a lawsuit between Pennzoil and Texaco that resulted in the biggest plaintiff’s verdict of the era and a three-billion-dollar settlement—back when that was a lot of money. The lawyer for Texaco, the big loser, was named Dick Miller, and my boss used to say of him, “Dick Miller has two speeds: OFF and KILL.” I’ll never forget that because it encapsulates how some lawyers approach cross-examination. A truly devastating cross examination flows from applying lessons learned from the raptors in Jurassic Park: get the prey to look one way, while the attack comes from another.“
“In court, that entails laying a trap and not springing it too early. Skilled cross examiners box witnesses in and seal off points of retreat before the witness recognizes the need to run. The very best cross examiners don’t spring their traps during the cross; they save that for final argument.”
“The greatest teacher of cross-examination I’ve ever come across was a former prosecutor, judge and law professor named Irving Younger, who died about 35 years ago. Younger’s famous lecture on the topic was called “The Ten Commandments of Cross-Examination.” I’ve listened to multiple versions of his talk over the years and all are magnificent. Stirring. Funny. Unforgettable. Younger opined that a lawyer must try about 25 cases to begin to be skilled in cross-examination, but he GUARANTEED that any lawyer strictly adhering to his Ten Commandments would be able to conduct a reasonably effective cross-examination. Of course, he added, no lawyer is capable of sticking to all his commandments until the lawyer has about 25 trials under his belt!”
“I do not have ten surefire commandments that will guarantee you won’t get in trouble on cross-examination, but I have a lifetime in court (much of one anyway) and many years teaching law to draw on in offering advice on what to expect on cross plus a few suggested techniques that I GUARANTEE will help you become a better witness.”
So, if you’re looking to help an expert witness new to the role or a veteran making the same old mistakes, perhaps you’ll point them to my new primer at http://www.craigball.com/Ball_Expert_Witness_2023.pdf
Craig Ball, Copyright 2023 – ALL RIGHTS RESERVED, image @Charles Bragg (Published on edrm.net with permission.)