Cross-examining expert witnesses can be one of the more challenging and intellectually intimidating tasks that litigators face. Preparedness is essential to any successful cross-examination. Any successful cross-examination of an expert witness requires thorough preparation and execution, as there is less of a margin for error than with other witnesses.
The first thing to do to prepare to cross examine an expert witness is to clearly define your goals. You should write out a detailed litigation plan and make sure that your goals are attainable and not over-reaching. As Dan Boone wrote in Canadian Lawyer, “Don’t try to get away with broad sweeping questions that overreach attainable goals.”
Once you have outlined your plan, it’s time to do your homework. Make sure you are prepared to speak to the expert in the language of their field. Remember, they are going to be more knowledgeable about their area of expertise than you are—that’s why they are experts. However, you should try not to get intimidated by their superior knowledge, and do your best to prove that you understand the science behind their testimony. You can accomplish this by reading the expert’s published articles and cases and familiarizing yourself with standard texts and terminology in the field.
Though experts are often incredibly knowledgeable in specific niches or fields, since experts are not qualified in all areas, you can minimize their ability to do harm by limiting the expert’s ability to speak out in areas outside their realm of qualification. The best defense against an expert witness is therefore to prevent them from ever entering a courtroom.
According to David Nolte, principal at Fulcrum Inquiry LLP who has more than 30 years experience performing forensic accounting, “Attacking the opposing expert’s … conclusions is much more difficult than attacking their qualifications.”
If you are going to attack their conclusions it is fundamental that you have your own equally qualified expert. Your expert can help you to expose cracks in their testimony’s reliability.
According to Texas trial lawyer Quentin Brogdon, some key metrics to use when assessing expert witness’ reliability are:
· The extent to which the expert’s theory can be tested
· The theory’s potential rate of error
· Whether the theory has been or could be subjected to peer review or publication
· Whether the theory has been generally accepted as valid by the relevant scientific community
· The extent to which the theory relies on the subjective interpretation of the expert
· The nonjudicial uses that have been made of the theory
By being adequately prepared, you can have the confidence to effectively take on any expert witness. A successful cross-examination is a chance to influence the jury in your client’s favor. A well-argued cross examination of an expert witness can often be the deciding factor in winning a case. Make sure you are adequately prepared.