Deposing The Other Side's Expert Witness | Chapter Eleven | Robert Singer Mediation

Deposing The Other Side’s Expert Witness – Chapter Eleven – Part One

First of all, I would strongly suggest that your deposition be scheduled after service of your opponent’s answers to your expert witness interrogatories and Request for Production which will include their expert’s C.V. and report, should one have been prepared…
Many attorneys, start by asking questions concerning the expert’s qualifications. My question is…why? 
The expert’s C.V. is already in your possession. You already know their credentials and most likely, the expert will be qualified to testify.  If you see an opening in that area, you can always ask the court to let you voir dire the witness before the court qualifies the witness to testify as an expert. 
More importantly, why would you help your opponent? Keep in mind, that if the expert is not asked about his qualifications, the deposition cannot be read (or video shown) to the trier of fact, should the expert not be available to testify at trial.  Stranger things have happened.  
I would also suggest that if the expert gives you favorable testimony, particularly if they are not your opponent’s hired gun, such as a treating physician, you can qualify them at the end of the deposition if you choose to do so. 
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Professionalism | Chapter Ten | Robert Singer Mediation

Professionalism – Chapter Ten

For those who may not know, the Florida Bar is now requiring all attorneys to watch a two-hour
video on Legal Professionalism, as a part of your CLE requirements. I watched this video and
highly recommend it. The highlight for me was the lecture given by attorney Brian Tannebaum,
which centered on real-life scenarios and practical tips on what to do and more importantly, what
not to do, in specific situations.

Many of you will confuse Legal Professionalism with Legal Ethics, however, they are not
synonymous. As explained in the video, Legal Ethics as defined by Chapter Four of the Florida
Bar Rules are the minimum requirement for an attorney practicing in the state. Legal
Professionalism refers to the expectation that attorneys in our state will do more than the
ground-floor standards. The Florida Bar expects us to pursue and practice the highest ideals
and tenets of the legal profession. The essential ingredients of professionalism as defined by
the Florida Bar are character, competence, commitment, and civility.

A Local Professionalism Panel can resolve professionalism complaints. Although a Panel
cannot discipline a lawyer. If the complaint cannot be resolved informally, the Panel can refer
the matter to The Florida Bar for an investigation into whether the reported conduct violated the
Florida Rules on Professional Conduct. The 11th judicial circuit, 17th judicial circuit, and the 15th
the judicial circuit all have such Panels.

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Rule of Civil Procedure 1.280 – Chapter Nine

On October 7, 2021 the Florida Supreme Court approved an amendment to the rule above, which requires that when responding to Requests for Production, Written deposition Questions, Interrogatories and Request for Admissions the responding party state each deposition question, interrogatory, or discovery request in full, as numbered, followed by an answer, objection or other response.

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Case Themes - Chapter Eight - Robert Singer Mediation

Case Themes – Chapter Eight

Your case theme can have a major impact on the trier of fact. When you develop a powerful case theme, you give the trier of fact, a lens through which they will view the evidence in your case. Your opening statement, your witnesses and their direct examination, the evidence you submit, your cross examination should relate the your case theme and sub-themes in your case. These will sum up in your closing arguments to the trier of fact. 
The trier of fact, will start looking for the evidence that supports your case theme that you told them in opening argument. That is why it is so important to invest time developing your case theme. The better your theme “hooks” the trier of fact, the more likely you are to win. 
Taglines, catch-phrases, and themes have a powerful persuasive effect in the courtroom. Invest some time developing your theme, and then try it out outside the courtroom. Share them with your colleagues and staff, your friends and family, etc. The important point is to refine your theme until it captures the essence of your case, giving the trier of fact a compelling lens through which to view the trial. 

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Irving Younger's 10 Commandments - Cross Examination - Chapter 7

Irving Younger’s 10 Commandments – Cross Examination – Chapter Seven

1. Be Brief
Be brief, short and succinct. Why? Reason 1: chances are you are screwing
up. The shorter the time spent, the less you will screw up. Reason 2: A
simple cross that restates the important part of the story in your terms is more
easily absorbed and understood by the jury. You should never try to make
more than 3 points on cross-examination. Two points are better than three
and one point is better than two.

2. Use Plain Words
The jury can understand short questions and plain words. Drop the 50 dollar
word in favor of the 2 dollar word. “Drive your car” instead of “operate your

3. Use Only Leading Questions
The law forbids questions on direct examination that suggest the answer.
The lawyer is not competent to testify. On cross-examination the law permits
questions that suggest the answer and allows the attorney to put his words in
the witnesses’ mouth. Cross-examination, therefore, specifically permits you
to take control of the witness, take him where you want to go, and tell your
important point to the jury through the witness.

Not asking controlled leading questions leaves too much wiggle room. What
happened next? I would like to clear up a couple of points you made on
direct? These questions are the antithesis of an effective cross-examination.
Any questions which permit the witness to restate, explain or clarify the direct
examination is a mistake.

You should put the witness on autopilot so that all of the answers are series
of yes, yes, yes!

4. Be Prepared
Never ask a question that you do not know the answer to. Cross is not a
fishing expedition in which you uncover new facts or new surprises at the trial.

5. Listen
Listen to the answer. For some, cross-examination of an important witness
causes stage fright; it confuses the mind and panic sets in. You have a hard
time just getting the first question out, and you’re generally thinking about the
next question and not listening to the answer.

6. Do Not Quarrel
Do not quarrel with the witness on cross-examination. When the answer to
your question is absurd, false, irrational contradictory or the like; Stop, sit
down. Resist the temptation to respond with “how can you say that, or how
dare you make such an outrageous claim?” The answer to the question often
elicits a response, which explains away the absurdity and rehabilitates the

7. Avoid Repetition
Never allow a witness to repeat on cross-examination what he said on direct
examination. Why? The more times it is repeated, the more likely the jury is
to believe it. Cross-examination should involve questions that have nothing to
do with the direct examination. The examination should not follow the script
of the direct examination.

8. Disallow Witness Explanation
Never permit the witness to explain anything on cross-examination. That is
for your adversary to do.

9. Limit Questioning
Don’t ask the one question too many. Stop when you have made your point.
Leave the argument for the jury.

10. Save for Summation
Save the ultimate point for summation. A prepared, clear and simple leading
cross-examination that does not argue the case can best be brought together
in final summation.

Credit: Summarized from The Art of Cross-Examination by Irving Younger. The Section
of Litigation Monograph Series, No. 1, published by the American Bar
Association Section on Litigation, from a speech given by Irving Younger at the
ABA Annual Meeting in Montreal Canada in August of 1975.

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Interrogatories - Chapter Six

Interrogatories – Chapter Six

A party may only serve 30 interrogatories ( including subparts ) on any party. If a party wants to serve more than 30, it must be with leave of court with good cause shown. 
If the Florida Supreme Court has approved a form of interrogatories for a type of action, the party is required to use the form approved in its initial set of interrogatories. However, the party may reduce or add to the approved form, but the total may not exceed 30, including subparts. 
That is, if certain interrogatories of the court-approved interrogatories are not relevant to your case, delete them or better yet, change them to a question, which is relevant to your case. You do not need leave of court to make that change as long as it does not exceed the 30 limit. 

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Claim of Privilege - Chapter Five

Claim of Privilege – Chapter Five

Fla Stat 90.501-90.506 details the various privileges which may be asserted by a litigant, but Fla Rule of Civil Procedure 1.280 (b)(6) details how to respond and assert the privilege.
A party who responds to or objects to discovery requests and who withholds information otherwise discoverable by asserting that the information is privileged or subject to other protection from discovery must assert a claim expressly and must describe the nature of the documents , communications, or things not produced or disclosed , such that, without revealing the privileges or protected information itself , the description will enable other parties to assess the the applicability of the privilege or protection. 
In other words the objecting party must file a privilege log, so that it can be determined whether the documents or things to be produced are in fact, privileged.  It is important to note that failure to provide a privilege log when objecting on privilege grounds may amount to a waiver of the privilege. 

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Cross Examination (Continued) | Chapter Four | Robert Singer Mediation

Cross Examination (Continued) – Chapter Four

Chapter 4 – Cross Examination (continued)

  1. Do not repeat your opponent’s direct examination. Why have the trier of fact hear it again?
  2. Primacy and recency. As discussed in Chapter two, your first group of questions and last group of questions should be your strongest.
  3. Have your cross, establish a few strong points. Ask yourself, is this an area that I will want to discuss in closing or is it peripheral?
  4. Lead, Lead, Lead. If the answer is that important, lead the witness to it by asking questions that are answered either yes or no. 
  5. Make a statement and have witness agree with it .
  6. Short concise questions
  7. Obviously, you want to avoid open ended questions and only ask those ,if the answer is unimportant.
  8. Keep control of the witness and keep control of yourself.
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Chapter 3 Cross Examination Robert Singer

Cross Examination – Chapter Three

Chapter 3 – Cross Examination – Yes or No?

Cross-examination is the most anticipated part of most trials, which many writers call an art form.  But the first question that needs to be asked, is whether you should cross-examine at all? Examination is not required of every witness and the attorney shows the judge (or jury) a certain amount of confidence, by stating “ we have no questions for this witness”. Ask yourself the following, before rising to commence your cross-examination.

  1. Has the witness hurt your case? Witnesses who merely establish a foundation or a technical element may not need to be examined further.
  2. Is the witness important? When the witness has a significant role, some type of cross-examination may be required or it may invite a negative comment in closing argument by opposing counsel.
  3. Was the witness credible? The witness may have contradicted your opponent’s other witnesses or simply not be believable.
  4. Did the witness give less than expected on direct examination? Possibly, an important part of his or her testimony was omitted. Why open the door? Possibly, the witness purposely withheld portions of testimony hoping that you would pursue it on cross.
  5. What are your realistic expectations on cross? Do you have any real ammunition to use during cross? If you can’t score points, avoid a cursory inquiry.
  6. What risks do you need to take?  You must always do a risk/benefit analysis. There are very few perfect cases. Therefore, trials always involve a calculated risk. If you have a winner, you want to keep risks at a minimum. If you have a loser, you may need to go for it during cross.

Remember the purpose of cross-examination is to either elicit favorable testimony or to destroy or discredit the witness. Keep that it mind, in your analysis as to whether to cross at all.

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Start Strong, Finish Strong - Chapter Two

Start Strong, Finish Strong – Chapter Two


The Primacy/Recency effect is the observation that information presented in the beginning i.e. Primacy and the end i.e. Recency of a learning episode tends to be retained better than the information presented in the middle

This applies to public speaking as well as to your persuasive writing. As my journalism professor described it as “the Hook (primacy )  and Hammer (recency )  “ . A great example are the writings of opinion columnist Leonard Pitts , Jr.

One need to consider Primacy/Recency as a part of their litigation toolbox. In your Opening and Closing statements, studies have shown that you have 30 to 60 seconds to get your listeners attention . Let the listener ( Judge /Jury)  know why it is important for them to keep on listening.  End strongly with a memorable quote, call to action or a message that will keep the listener ( Judge/Jury)  thinking long after you have finished your remarks .

I would also suggest that Primacy/ Recency also applies to your order of calling witnesses as well as your Direct and Cross Examinations of those who are called to testify. If the judge allows it, try to call your strongest witnesses,  first and last . In your examination of witnesses, particularly cross examination of an adverse witness, your first set of questions should be your strongest set of questions . The first line of questioning should be so strong that the adverse witness starts talking to themselves . And end your questioning with your second strongest set of questions literally knocking themselves out of the witness stand . 


Credit: Various studies on primacy and recency.

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