Kirkland partner Donna Welch was interviewed as part of The American Lawyer Litigation Daily's "Who's the Best You've Ever Seen?" series, and discussed how she develops a strong cross-examination.
There’s always a surprise during cross-examination.
That’s what Kirkland & Ellis partner Donna Welch told me when I asked her this week why trial lawyers seem to like talking about cross and everything that goes into it. Opening statements, closing arguments and even direct testimony can be scripted to a certain point, she said. But cross-examination is a bit more unpredictable. That’s especially the case with expert witnesses–highly-trained, often-compensated subject-matter experts who don’t concede points readily.
Welch, who is based in Chicago, handles high-stakes commercial litigation with a particular focus on expert-heavy cases that need to be worked up for trial. In the past, she’s handled both plaintiff- and defense-side cases, including working both sides of civil RICO cases. But her highest profile trials of late have involved defending Allergan from claims stemming from the opioid crisis on either coast–in state court last year in Orange County, California and in federal court in West Virginia this spring.
A defense win in the California case last year landed her Litigator of the Week honors last November alongside counsel for three codefendants. But it was her work on the West Virginia case, where one of her colleagues described a cross so blistering it left a witness apologizing to the court that inspired us to reach out to Welch as part of our series “Who’s the Best You’ve Ever Seen?” discussing certain slices of litigation with masters of the craft.
After spending some time digging into some of Welch’s recent cross transcripts, I’m glad that I was the one asking questions in this scenario. Welch told me the goal when cross-examining experts is to win what she calls “the credibility battle.”
“With paid experts, who are difficult witnesses, getting them to say or concede a particular point can be tricky,” she said. “But whether or not you get the point, if you can get a credibility hit both to that witness and to their counsel, and build your credibility in the eyes of the judge and the jury in doing that, that’s a strategic win.”
“Buttressing your credibility and whittling away at the expert’s credibility and the credibility of the person who put them on the stand is one of the biggest goals,” she said.
Welch said that she goes into cross-examination thinking about what she wants to say in closing arguments. She asks herself what affirmative point she could establish through an opponent’s expert, and whether there’s a critical point the expert hasn’t considered or if there’s a key opinion that the expert cannot offer. “You’re looking for openings that feed your themes on closings,” Welch said.
Welch said that when she was “less seasoned” she would often try to do too much with individual experts. Since experts have often been deposed multiple times on dozens of subjects, there are plenty of avenues to pursue potential impeachment. But now Welch says she’s not afraid to be the shortest cross in the courtroom. “Restraint” is how she describes it.
“On direct examination, they’ll testify about 20 studies or more. It’s tempting because you’ve got something you could say and you could battle on all of those studies with them,” Welch said. “But frankly, it gets boring. I think a court or a jury gets lost in trying to understand what you think is really important. And so just [have] the restraint to say, ‘I’m going to pick three of the studies. And of those three studies, I’m going to hit two key points or three key points, not 15.’”
Despite the focus on more pointed cross-examinations, Welch said that her outlines are probably longer than they used to be earlier in her career. She said she usually starts with an outline that has been prepared by someone junior that’s full of fresh ideas and approaches to a particular witness. But she also said that she goes through all the primary sources—the studies, the deposition transcripts—from beginning to end herself. She said in her outlines she usually leaves herself room to make about 10 points based on what she thinks will come up on direct examination. “But I exercise restraint. And ultimately when I stand up, I only hit two or three of them,” she said.
“Listening is 90% of what you’re doing on cross—listening for a mistake, listening for the witness to falter, listening for a phrase or a turn of phrase that they give you that then you can use against them and use in upcoming questions,” Welch said. “I think probably the biggest mistake younger lawyers make is they’re so busy focused on their outline and so busy focused on making their points, that they’re not listening.”
While some will say that the examiner should take center stage during cross-examination, Welch said that some people take that a step too far. For her, she said facts, themes and questions take center stage. There’s no need to be too aggressive or flamboyant. “Sometimes it’s being super reasonable, super credible and just letting the facts speak for themselves that drives the point home,” she said.
And Welch said to her that means not getting dragged into the mud by an expert who gets nasty about her perceived lack of knowledge of a subject. She said she’ll even cede points if a paid witness corrects her, as they often do when a question might miss the nuance of a certain subject.
“I’m very quick to say ‘Thank you for that clarification. That’s helpful. Now, let me try again, with the benefit of what you’ve said,’” Welch said. “My demeanor should be professional and respectful of an expert’s area of expertise, but not being afraid to go toe to toe” even at the heart of that expertise when necessary.
Besides focusing on restraint, Welch said that she approaches each cross knowing the order of the topics she intends to hit and with a series of “sitdown” questions. “At the end of the day, you still need to be flexible,” Welch said. “But I would never stand up not having a clear idea of where I’m going to take the cross and where I’m going to end the cross.”
Now seems like a good time for me to sit down.