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By: Richard A. Cook, Esq. (Guest Blogger)
Greetings, TPS readers, and welcome to your work week! Oh, yes, another week of fun in the land of legal…what could be better than that? (For those of you thinking Hawaii – I’m with you – sign me up! Just pretend that chair of yours is seated beneath a beach cabana, and those florescent light bulbs are the sun…)
It’s certainly no secret that experienced attorneys make some of the best teachers, so today, we’ve asked attorney Rich Cook, to share a little insight regarding the cross examination of expert witnesses. Some of you may may be thinking to yourself: “But I’m not an attorney…I don’t cross-examine anyone.” While that may be true, knowledge is power, and savvy paralegals are typically paid pretty darn well (ka-ching, ka-ching) to think on a higher level. So, think of this as an opportunity to expand your mind, and hopefully, your future earning capacity, too! At the very least, you’ll feel super smart on a Monday.
Your expert witness education begins – right now!
Reprinted with permission from The Barrister’s Toolbox: www.the-barristers-toolbox.com.
Where do you start with your preparation to cross-examine an expert? The following is a list of areas to review:
1. The Expert’s Curriculum Vita: You should thoroughly review the expert’s c.v. Expert’s will exaggerate and even make up credentials. In a criminal case I was defending the State’s expert, an environmental specialist, claimed he had a B.S. in engineering and was a P.E. which is typically short for being a certified professional engineer. He had signed all of his reports as a P.E. which at the deposition he claimed was short for “plant engineer” apparently suspecting he was at risk. Surprisingly, he claimed that he had never intended that anyone believe he was a certified professional engineer as I move through over twenty separate reports where he used this designation. He admitted that to make such a representation would be a bold-face lie. I then concluded his deposition by looping back to the first exhibit I had him identify and authenticate as being true and accurate, his c.v. There buried about half-way through the c.v. in his own words was the assertion that he was a “certified professional engineer”. He end up admitting to a number of other fabrications as well, including his educational background and other professional certifications. These were all done so he could raise his profile and make more money. All criminal charges against my clients were dismissed shortly after this deposition.
2. Prior Testimony: Expert’s who testify have often times covered similar ground in other cases. Depositions are an excellent source of inconsistent positions and damaging concessions. You can also find areas of bias explored in other depositions. I have subpoenaed expert’s records which they claimed that they no longer retain and ended up using the expert’s prior testimony to establish that they could in fact obtain such information. Trial lawyers often maintain data banks for frequently used experts. Westlaw and Trial Smith also have data banks you can search for a fee. Don’t ignore these sources.
3. Prior Writings of the Expert: Such articles contain principles upon which you can anchor your cross exam because they are the expert’s own words. These are admissible under Rules of Evidence 613 (prior inconsistent statements and 803(18) (learned treatises).
4. The Expert’s Report: A careful analysis can uncover implicit assumptions and the basis of the expert’s opinions. Often times the best way to challenge an expert is to show the foundation of his opinion is resting on sand, not bedrock. The truism of computer science is equally applicable to expert witnesses, “Garbage in, garbage out”. Just remember to anchor the items which are “garbage” as important early in your examination before looping back and pulling the rug out from the expert.
5. Learned Treatises: You should consult the central authorities of your expert’s field as well as journal articles in his field. You should in particular focus on those items you know he will have to admit are authoritative such as journals of organizations he is a member or leading educational textbooks in the expert’s field. Don’t forget the requirements of Rule of Evidence 803(18) which require that someone establish that the writing is authoritative and the text of the treatise you want to use must be read into evidence while the expert is on the stand.
6. The Internet: The Internet is the great equalizer. You can find journal articles, licensing databases, training videos, literature, the expert’s website, test protocol, websites listing experts for hirer and more. I have used training videos to demonstrate law enforcement experts have failed to follow testing protocol for determining whether blood was present and have found You Tube videos regarding protocol for surgical procedures for use in questioning doctors. Google your expert’s name; you can find all sorts of interesting background information and leads. You can check Google Scholar for journal articles and case law from across the land to see if your expert has testified or written any articles he may not have listed.
7. Private Investigators: They can help you verify credentials and degrees as well as identify other lawsuits where the expert has testified or been sued. You might even turn up an impeachable offense.
8. Consulting Experts: They can assist you in spotting errors and mistakes in an expert’s analysis. They are also an excellent source for finding learned treatises and journal articles.
9. Other Attorneys: This probably is not the expert’s first rodeo. Check with other trial lawyers in your area who may have come across the same expert. Call lawyers identified in your search of case law or the list of past cases found in the mandatory disclosures required in federal court cases. They can provide useful tips or identify tendencies of the expert.
10. Know Your Case: You will in all likelihood have a better working knowledge of your case than the expert. Cross-reference your evidence, exhibits, documents and deposition testimony and be ready to pounce on any mistakes the expert makes in understanding the case. I have beat adverse experts more often than not by knowing the facts better than the them. This allows you show the jury they are not a trustworthy guide.
11. iPhone Apps: Yes, there is an app for that too. I have used accident reconstruction apps to test and see what a change in the input data would mean to the expert’s ultimate conclusions. I have also used well known apps such as Wolfram Alpha and Power One FE Calculator for similar purposes.
Good luck hunting. Remember, nothing beats preparation.
Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, he served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Indiana Prosecutor’s Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector’s Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney’s office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook Shartzer & Tisch in Indianapolis. Richard is also a member of the ITLA and the ABA.
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