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IBA: Expert Witnesses Merit Special Consideration

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By, John F. Kautzman
Ruckelshaus Kautzman Blackwell Bemis & Hasbrook


When it comes to witness control expert witnesses just like lay witnesses need to be managed. This is often achieved through the same techniques, however some other special issues also need to be considered when examining experts.

Never “turn over the floor” to the adverse expert witness. The expert will take the opportunity to “teach the jury.” And will no doubt win the credibility battle.

It has been said that “success is where preparation meets opportunity.” With experts, preparation is indeed essential. Do your homework, and try to learn as much about the witness’s substantive area of expertise as possible. If you gain the expert’s respect with your knowledge of the subject matter, you’re sure to gain the admiration of the Jury. With even a working knowledge of the subject matter, you are sure to gain important concessions from the expert that will bolster your theory of the case.

Your preparation should be thorough, and should include interrogatories and depositions; the review of expert literature and treatises; a careful examination of all records, reports, and other documents. If possible, consult your own expert to help prepare your cross-examination as well.

Special topics of inquiry for experts should also be considered. They include the following: professional service fees, expert testimony fees, whether these fees have been paid as of yet – intimating that the expert might in fact have a financial interest in the outcome of the case, and how many times the expert has testified on behalf of plaintiffs or defendants (“the hired gun”).

Slice away at the expert’s qualifications to narrow his expertise. Peel away all the things that he is not an expert on.

The corollary of this is to build upon irrelevant areas of expertise that the expert may possess, and then point out on final argument that those areas of expert testimony are simply not an issue in this case.

Push the envelope of the expert’s opinions, and vary the hypothetical questions that your opponent has posed to the expert. For example, ask the expert if “ this particular fact was changed, would that in fact change your opinion?” If the expert admits that the distinguishing fact would change his opinion, focus on proving that distinguishing fact and thereby making the expert your own. Likewise, if the expert refuses to change his opinion regardless of the facts, you can simply argue in final argument that the expert is unreasonable and is obviously a paid hired gun with a preordained fixed opinion.

Consider having the witness define technical terms and phrases so that his testimony is placed in the context of everyday language. Experts often have difficulty doing this, and it also helps remove the mystery and aura of self importance surrounding experts.

Point out that the expert’s opinion is based solely upon the subjective information relayed to him by the adverse party. In this way, you may be able to argue in summation that the expert is an honorable person, but was simply provided biased information by the opposing party.

Always demonstrate that the witness has no firsthand knowledge of the facts of the case. In other words, the expert undoubtedly was not an eye witness to the controversy in question, so he is simply basing his opinions on second hand knowledge. By following the basic techniques for witness control, and keeping in mind the special guidelines for experts you should have no trouble at least limiting the impact of the adversarial expert, and at best turning him into an expert of your own.

Reference material and suggested reading : Fundamentals of Trial Techniques by Tom Mauet, Cross Examination-Science and Techniques by Larry Pozner and Roger Dodd, The Litigation Manual – A Primer for Trial Lawyers from the American Bar Association, and The Power of the Proper Mindset by James W. McElheney.

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

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  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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