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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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