Heard It Through the Depp Vine: Five Basic Expert Witness Cross-Examination Tips
A YouTube clip from the Johnny Depp-Amber Heard trial entitled, “Psychologist wipes the floor with Amber Heard's lawyer,” made the rounds a while ago. In the clip, Heard’s attorney cross-examines Depp’s expert witness, Dr. Shannon Curry, and Dr. Curry effortlessly manipulates the questions to further her own agenda. Based on the verdict, the attorney’s cross also failed to impress the jury as well as the YouTube commenters. I have five easy tips to avoid such ineffective cross-examinations, but first, we should examine why experts are so hard to examine in the first place.
Practice makes perfect. Most witnesses have never testified before their deposition, but expert witnesses testify routinely. It’s literally their job, and they have usually been at their job for years, if not decades. So the expert will not be easily intimidated or confused, as a lay witness often becomes at trial. Sometimes, the expert has testified more than the cross-examiner has examined a witness, in which case it’s like having Willian Astudillo pitch to Yermin Mercedes.
Preparation pays off. Witnesses rarely want to do the things necessary to prepare for testifying — making time for the prep session, reviewing key documents, focusing during the prep session — because preparing for testimony distracts from the witness’s “real” job. By contrast, the expert’s “real” job is to prepare for testifying, and they charge handsomely. So experts will happily review documents in advance, find other documents to review, stay late into the night preparing — anything a trial attorney might want or need to get them ready for testimony. That preparation shows on the stand.
Rule 702 advantage. By definition, an expert witness has “knowledge, skill, experience, training, or education” that an average person does not. Chances are the average lawyer does not have this know-how, either. So the cross-examiner is fighting on the expert’s turf.
Personality also pays off. Besides being knowledgeable, expert witnesses get hired because they are especially eloquent, engaging, and confident under pressure. An average person might stammer or search for the right word, but an expert witness will effortlessly utter precisely the right phrase. Where a lay witness may occasionally appear uncertain, an expert projects an almost biblical certainty. This derives from the three points above — if you have done this a million times, if you have prepared thoroughly, and if you have specialized knowledge that your cross-examiner lacks, you are in an ideal position to testify with confidence.
Having acknowledged how difficult examining an expert can be, we can now look at the Depp-Heard clip, and derive a few tips for what a cross-examiner should do right.
Figure out your opponent. If your witness is an expert, find his or her prior testimony and read the transcripts. How does the expert answer questions? Is the expert a little too impressed with her qualifications? Does he back down if challenged?
If your witness has never testified before, you still should be able to size him or her up and figure out what will work and won’t work during examination. For example, in the clip, Heard’s attorney asked whether Dr. Curry had “dinner and drinks” with Depp before agreeing to provide her testimony, and the expert easily defuses the question by explaining that it was an interview. A savvy attorney would have taken this brief exchange as an indication that further questioning would not elicit a different answer and moved to the next topic. But Heard’s attorney was not savvy. Instead, she kept asking the expert about the dinner and drinks, apparently digging for a better answer, and she got the same answer every time. As it is, not only did she allow the expert to repeat an unhelpful answer, but she wasted the jury’s time. Which leads to . . . .
Get to the point. Stephen Covey said, “The main thing is to keep the main thing the main thing,” a statement as true in trial practice as in the rest of life. You have only a short time to convince the jury that your examination deserves their attention. If you miss that window, your jury’s collective mind will wander out of the courtroom and down the street. So make the most of those first couple of minutes.
Going back to the dinner and drinks point — who cares? Presumably, Heard’s attorney’s “main thing” was to prove that Dr. Curry’s evaluation of Heard’s mental health was incorrect. So she needed to get to that point as soon as possible. Instead, she wasted the beginning of her examination — when she had the jury’s attention — to discuss whether Dr. Curry had dinner and drinks with Depp before getting hired. A lot of the video’s comments criticize this tactic, and although I would not typically recommend YouTube commenters as a bastion of sophistical tactical thought, they are right. A month later, all you will remember from this clip is the “dinner and drinks” exchanges, not the flaws in the expert’s opinion. Heard’s attorney didn’t make her way to the expert’s until it was too late to make an impact.
Be prepared. Juries resent attorneys who waste their time, and they appreciate attorneys who respect their time. So you want to keep your examination going at a reasonable pace, so the jury can see that you are respecting their time.
Heard’s attorney violates this rule. At one point in the video, the expert refuses to concede a point, so the attorney has to impeach. But she does not have the impeachment material at hand, so she has to riffle through her papers to find a response. The clip inserts the sounds of crickets chirping, which is not necessary, because we can all see how the attorney is wasting the jury’s time and attention.
Get your facts straight. Litigators need credibility. Everything you say in court should be factually accurate, so the jury associates you with being accurate and therefore believes what you tell them at closing argument. Conversely, being inaccurate hurts your credibility, and a loss of credibility invariably costs you during jury deliberations.
Heard’s attorney asks about the Dr. Curry’s “designation.” Dr. Curry correctly responds that she did not make any “designation.” Rather, Depp’s attorney made the designation, and she wrote her findings in her report. Then, the attorney doubles down by reading Dr. Curry’s supposed opinion from the designation rather than the report, which allows Dr. Curry to correct her again. At this point, Dr. Curry looked more knowledgeable than the attorney about a legal issue — the exact opposite impression a trial attorney wants.
One point per question. A few minutes into the clip, the attorney asks a two-part compound question. Then, she asks a three-part compound question. Depp’s attorney does not object, because he doesn’t need to — the question is so garbled that the expert’s answer hardly mattered. Then, she asks a four-part compound question, at which point Depp’s attorney objects, and the judge sustains the objection. Heard’s attorney needed to make her point and move on.
Heard’s attorneys made many fundamental errors during the trial, but the above describes the five major mistakes Heard’s attorney made in the eight-minute clip and how to avoid them. Following these basic rules will put you on the path to a winning verdict and away from internet ridicule.
Sean Griffin litigates contract and fraud cases in Virginia, Maryland, and the District of Columbia. He may be reached by email at sgriffin@dykema.com or by phone at (202) 906-8703.