ILNews

IBA: Expert Witnesses Merit Special Consideration

Back to TopCommentsE-mailPrintBookmark and Share
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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

ADVERTISEMENT