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IBA: Expert Witnesses Merit Special Consideration

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kautzman-john-mug Kautzman

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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  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

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