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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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