In The Four Main Advantages of Trial Lawyer against Expert Witness, attorney Dean Brett writes:
Throughout my years as a trial attorney, I have found that one of the most challenging aspects of trial is cross-examining an expert witness. I’ve written an article series describing my experience and the methods I’ve used that have allowed me to gain real advantages through cross-examination of an expert witness. These methods have proven highly successful for me for 40+ years. I will be publishing the article series over the next several days, so keep an eye out for the next installment.
In the first part of this article series, I described the reasons that a trial attorney needs to cross-examine an expert witness.
Against the expert witness defending his home territory, the trial lawyer has four main advantages.
1) The trial lawyer can choose not to ask any questions at all, or more likely, can choose not to ask certain questions. He can avoid certain battlefields. The task of preparing to cross-examine an expert witness is largely one of determining which questions NOT to ask.
2) The trial lawyer can choose to ask only questions which require either a “yes” or a “no” answer. He can take away the expert’s most potent weapon – the monologue.
3) The trial lawyer can learn the specific narrow aspect of the expert’s subject matter that is relevant to the specific issue being tried. He can learn that part of the territory on which the battle will be fought.
4) And finally, the trial lawyer can analyze and criticize the expert’s answers in the home territory of final argument, on his own turf, where the expert is speechless.
Effective use of these four advantages minimizes the expert’s strength, his expertise in the subject matter, and maximizes the trial lawyer’s strength, the ability to question narrowly then comment on the answer without reply.
Put it in perspective, right at the start. The average expert witness knows as much about his or her field as you know about law.
“That means a lot of different things. It means, for example, that the knowledge and ability of nearly any expert is uneven. It means that the typical doctor knows no more about hepatitis, pyloric stenosis or coronary arrhythmia than the average lawyer knows about promissory estoppels, renvoi, or the doctrine of worthier title. It means that a lawyer can learn enough about the flash point of waxes to cross-examine an electrical engineer who specified wax paper condensers in a color television set designed to operate at just 5 degrees lower than the burning point of wax. It also means that the witness – unless he has had previous courtroom experience – is going to be scared.” McElhaney, Trial Notebook, page 167. *
In the remaining parts of this article series, I will discuss:
The three conceptual categories of potential lines of questioning;
Final preparation for the cross-examination;
The Ten Commandments of cross-examination, plus four more.
An example cross-examination of a defense economist.– Dean Brett
* McElhaney, James W., Trial Notebook, The American Bar Association, 1981The next installments of this article series will be:
The four main advantages the trial lawyer has against the expert witness defending his home territory;
The four stages of general preparation for cross-examination of a defense expert;
The three conceptual categories of potential lines of questioning;
Final preparation for the cross-examination;
The Ten Commandments of cross-examination, plus four more.
An example cross-examination of a defense economist.
Attorney Dean Brett has been practicing injury and wrongful death law for 40+ years. Learn more about Dean, his practice, and his cases at his biography page. To contact the Brett Murphy attorneys with questions about a potential claim, please call 1-800-925-1875 or complete our simple contact form.