Client_News

Texas Lawyer:
By Quentin Brogdon

All trial lawyers experience a degree of fear and trepidation when facing the prospect of cross-examining the sophisticated adverse expert — the head of surgery for the hospital, the author of the authoritative textbook or the airline's chief pilot, for example. But trial lawyers can offset an expert's superior knowledge, intellect and experience with meticulous preparation and a carefully formulated game plan.

Dallas Lawyer Quentin Brogdon's commentary published in the Texas Lawyer Newspaper

Cross-examining expert witnesses presents the trial lawyer with unique challenges and opportunities. As Francis Wellman wrote more than 100 years ago in his seminal work "The Art of Cross-Examination": "Assume that an expert witness called against you has come prepared to do you all the harm he can, and will avail himself of every opportunity to do so which you may inadvertently give him." The trick is minimizing the opposing expert's opportunity to do harm to your case.

Decapitating the opposing party's expert in front of the jury may yield the tactical advantage of tainting the party's entire case, but it often is preferable to keep the expert from ever seeing the light of day in the courtroom. Even well-qualified experts are not experts in all areas. Every cross-examination of an expert, beginning in the expert's deposition, should be guided by an attempt to prevent or limit the expert's ability to opine in areas outside of the expert's expertise.

Under the Texas Rules of Evidence and the relevant case law, every expert must clear certain hurdles. In Texas, Rule 702 and the Texas Supreme Court's opinion in E.I. du Pont de Nemours & Co. v. Robinson (1995)require that an expert be qualified and that the expert's testimony be relevant and reliable.

Courts in Texas look at six factors in assessing the reliability of an expert's testimony: 1. the extent to which the expert's theory can be tested; 2. the theory's potential rate of error; 3. whether the theory has been or could be subjected to peer review or publication; 4. whether the underlying theory has been generally accepted as valid by the relevant scientific community; 5. the extent to which the theory relies on the subjective interpretation of the expert; and 6. the nonjudicial uses that have been made of the theory.

Ask the expert specific questions touching upon each of these areas. Use the language from the rules and the case law verbatim in questions such as, "What nonjudicial uses have been made of your theory?" "What can you tell us about your theory's rate of error?" When the expert fails to give answers that clear the relevant hurdles, there is little room for argument in a later hearing challenging the expert.

In advance of the expert's deposition, a trial lawyer should gather and process the expert's CV and report; everything relevant published by the expert; the expert's relevant prior testimony; information from other attorneys who have hired or faced the expert; relevant authoritative texts and articles in the expert's area of expertise; Internet references to the expert; references to the expert's membership in professional organizations; the expert's criminal record and professional disciplinary history; and the expert's past representations concerning specific areas of expertise.

During cross-examination of the expert, keep in mind the following:

1. The expert's education and background may not be as great as claimed.

2. The expert's conduct may have been questioned by a hospital, professional association, the press, an unhappy former patient or client, or other source.

3. The expert may agree that even experts really do not have the answer to the main issue in the case.

4. The expert may agree with your experts on important points.

5. The expert may not have conducted tests necessary to form the opinions given.

6. The expert may spend more time in court than in the expert's field of expertise.

7. The expert may be inclined, for financial or other reasons, to be biased toward the sponsoring party's point of view.

8. The expert may have relied upon the wrong witnesses or evidence in formulating opinions.

9. The expert may concede having no expertise and no opinions on certain issues.

10. The expert may concede that your theory of the case is a reasonable alternative to the expert's theory.

11. The expert may be willing, even if only reluctantly, to bolster the credentials and opinions of your experts.

12. The expert may recognize certain helpful learned treatises as authoritative.

13. The expert may be willing to criticize co-defendants or co-plaintiffs of the party sponsoring the expert.

14. The expert may lose credibility by defending outrageous conduct on the part of the sponsoring party.

15. The expert may render different opinions when assumptions are varied.

16. The expert may not have been thorough in formulating opinions.

17. The expert may concede that there are legitimate differences of opinion within the peer-reviewed literature.

18. The expert may concede that the opinion offered is largely subjective, as opposed to objective.

19. And the expert's opinions may be inconsistent with the expert's prior testimony.

Sometimes, it is necessary for the cross-examiner to get into the mud and wrestle with the recalcitrant expert on the expert's own turf. But tread carefully. Trying to rough up a legitimate expert during cross-examination is like pig wrestling: You get dirty and the pig likes it.

Do not view the cross-examination of an adverse expert witness as an intimidating, fearful experience. Instead, with thorough preparation, a carefully formulated game plan and realistic, attainable goals, it can be an opportunity to score significant points for your client, or at a minimum, an opportunity to prevent the other side from scoring significant points.

http://www.law.com/jsp/tx/PubArticleTX.jsp?id=1202510983028

Copyright 2011. ALM Media Properties, LLC.