Your ABA: Attacking Adverse Experts - American Bar Association

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As expert testimony can make or break a lawsuit, skill in handling experts is features, there is something for everyone.
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Attacking adverse experts Eye on Ethics
As expert testimony can make or break a Can you take the credit?
lawsuit, skill in handling experts is invaluable,
particularly in cases of dueling testimony. Technology Translators
Attacking Adverse Experts author Stephen
Easton, a seasoned trial lawyer and law Tech tips for greater efficiency
professor at the University of Missouri, offers
tried-and-true advice on dealing with experts to Around the ABA
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Attacking adverse witnesses
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Your book is called Attacking Adverse Experts. That sounds
pretty aggressive, especially in the current ADR world.
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Why do you advocate "attacking" witnesses?
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It is fundamental to the job of trial attorney to help the jury—we'll assume a jury,
though it could be a judge or arbitrator—find the truth. Often, the key step in
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helping the jury find the truth is helping them distinguish between the expert who
is correct and the one who is incorrect.
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In cases where the case goes to trial and two experts are testifying to
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dramatically opposite opinions about the same issue—and that happens quite
frequently—one of the experts is wrong.
Caperton amicus brief
The job of the lawyer who is on the correct side is to point out how and why the
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adverse expert is wrong. That is one of the highest callings available to a lawyer—
to help the jury reach the correct result. Left unchallenged, or challenged
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inadequately, that incorrect expert can lead the jury to an incorrect verdict. So
the quality of the lawyer's work really can make a difference.

And what if the lawyer finds herself on the wrong side?
Certainly there are instances where an attorney finds himself or herself on the

wrong side of a case. In those circumstances, one should endeavor to resolve the
case short of trial.
The advice in Attacking Adverse Experts will help you determine whether you are
on the correct side of the dispute, but the book's tactics will do you little good if
you are on the wrong side. Those tips are designed to help you attack when the
adverse expert should be attacked. They will help you expose incorrect testimony,
but they will not help you when the adverse expert is right.
Where does a lawyer begin to get the ammunition, and what kind of
information should a lawyer be gathering, to go after an adverse expert?
First, you must become conversant and knowledgeable in the area that is being
covered by the expert witness. It is impossible to effectively cross-examine an
expert witness unless you understand the underlying issues.

The second step is to educate yourself about the adverse expert witness. Your
primary task is collecting as many statements as you can by that expert witness.
One of the most obvious, but important and sometimes overlooked, tasks is to
collect the adverse expert's prior testimony.
A somewhat less obvious, and even more frequently overlooked, task is collecting
the expert's research and writing within his or her field. In the "publish or perish"
world of the academy, professors write, and many expert witnesses are
professors. You want to collect the adverse expert's publications.
A third source that is sometimes available is other people's comments about that
expert. For example, other experts in the field might have commented on the
adverse expert's work. Another example is court comments about the expert. In
this day of computer-assisted research it is a relatively easy process to plug in an
expert's name into a computer search, including WestLaw or Lexis or other
databases. Also, do not forget to plug the expert's name into a general Internet
search.
As you gather this information, you need to read it. You may need to use your own
expert to help you understand some of the complexities of that field. Wade through
the jargon and the science, until it starts to become second nature to you.
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As lawyers go through this research, what should they look for?
First and foremost, lawyers should look for statements that are inconsistent with
the position the expert is taking in the current case. Prior inconsistent statements
by this expert are the best of all. But prior statements by other experts—or
criticism of the expert by other experts, judges, or others—can also be helpful to
you.
Do not make the mistake of having others do the reading for you. As much as
possible, you need to do the reading, because you need the education. Once you get
that education, you will be the person who is best able to recognize the "gems" you
are looking for in your reading.
Can you offer some guidance on the deposition of experts? How should a
lawyer set out the parameters for the deposition, and what can one hope
to get out of the deposition?
My first suggestion is to do as much preparation in advance as possible. Try to
anticipate—based upon the written discovery or disclosure on the case—what
the expert witness is likely to say. Read about the topic at hand, so you will be
able to cover them effectively in the expert's deposition. If the adverse expert has
testified, written, or spoken about those areas, read those prior statements to
give yourself a head start on what the expert is likely to say in your case.
Write a detailed outline of the areas that you are looking to cover, even before the
deposition. But that outline needs to be a living document that will grow during the
deposition. No matter how much you do before the deposition, there will always be
surprises during the deposition.
Think of your outline as a road map as opposed to a detailed sequence of how you
will get to your destination. Look at your various options to get to your destination.
Your outline should provide points you want to cover, and you can use them in the
sequence that makes sense at the time. However, do not force the expert to cover
items in the order you determined in advance.
Understand that it is not your goal to "win" the case during deposition by
convincing the adverse expert that he or she is wrong. Too many attorneys
approach expert depositions as if that was their goal. As a result, they fail to get
as much as they could from the deposition.
Your real goals at the deposition are to develop a full understanding of what the
expert is saying and to get the expert to make statements that will be gems that
you can use during cross-examination. You will never convince the adverse expert
that he or she is wrong, anyway, so why set that as your goal?
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Anything else regarding depositions?
It is critical to remember the huge difference between deposing an adverse expert
and cross-examining at trial. At a trial, you want to take control of the expert
witness—you do not want him to talk. At the deposition, you do want the witness
to talk because you are taking sworn testimony that can be very useful in your
cross-examination. Even more so than the expert's prior statements from
testimony in other cases or articles or books, the expert's responses during
deposition are about this specific case, so they are a potential goldmine for your
cross-examination.
At a deposition let the witness talk, even when he or she is talking outside the
parameters of your question. That is why your outline is a roadmap of lots of
areas to cover, rather than a step-by-step guide. Do not stop the expert—at least
not until the end of the deposition—because you might stop him just before he or
she was going to say something that would have been very helpful to you during
your cross-examination at trial.
Speaking of getting experts to talk, remember that many experts are teachers. As
a teacher myself, I will admit that, if an audience is interested in what a teacher is
saying, a teacher will continue to teach—to talk. That is what you want the
adverse expert to do at the deposition. Thus, you should be very interested in
what the witness says. Do not be afraid to show this interest at the deposition.
Honey goes a lot further than vinegar at an expert deposition.
What should a lawyer know with respect to what you call a pre- versus
post-1993 jurisdiction?
That is a reference to the change in Federal Rules of Civil Procedure that created
the automatic disclosure provisions of Rule 26, including the requirement that
retained expert witnesses and others prepare a report disclosing certain
information to the other parties in litigation. Before 1993, expert discovery in
federal civil cases was limited to an interrogatory answer that identified the
expert, stated the areas of the expert's testimony, and provided a bare bones
statement of the expert's opinions and the bases of those opinions. Pre-1993
jurisdictions refers to those states—and it is still the vast majority of the states—
that still limit written expert discovery to this rather minimal information.
In federal civil trials and those in the few post-1993 states, which for some reason
seem to be in the West, you should receive automatic disclosures that cover all of
the information received under the pre-1993 expert interrogatory answers, but
also quite a bit of additional information. For retained expert witnesses, these
automatic disclosures should include information about expert's testimony in other
cases, the expert's publications, and perhaps most significantly, items and
information considered by the expert in forming opinions in the current case.
There was another significant change in the 1993 amendments to Rule 26 of the
Federal Rules of Civil Procedure. Those amendments explicitly provided for
depositions of expert witnesses. Some states, even those that have not adopted
the 1993 expert witness report disclosure system, have changed their discovery
rules to explicitly permit expert depositions. If you are litigating in a pre-1993 state
—and you probably are if you are in state court—you need to know whether the
rule in that state has been amended to explicitly allow for the depositions of expert
witnesses. If the answer is "no," then you need to determine whether the tradition
in that state provides for expert depositions despite the absence of explicit
authorization for expert depositions in the discovery rules.
The CD/Rom that is included in Attacking Adverse Experts includes a chart for
each state—and several other jurisdictions like the District of Columbia, Puerto
Rico, the Virgin Islands, and Guam—that will lead readers to the relevant citations
for that state, along with notations as to whether that state is a pre-1993 or post-
1993 jurisdiction and whether the discovery rules explicitly allow for expert
witness deposition.
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How can a lawyer use his or her expert witness against the adverse
expert?
Let your expert help you learn. Convince your expert to help you attack the
adverse expert. Sometimes you have to be blunt. Remind him or her that the
opposing expert witness testimony is saying that he or she is wrong. If you are
not effective in attacking the adverse expert, the jury might incorrectly conclude
that the adverse expert is right and, therefore, that your expert is wrong. You
may need to remind your expert that his or her professional reputation is on the
line in this trial, at least to some extent.
Once you get your expert motivated, ask him or her to identify where the other
witness is incorrect. If the adverse expert is wrong in his or her final opinion, she
must be wrong about the facts that she is assuming, wrong about the scientific
theory she is using, or wrong in her application of that theory to the facts. Your
expert needs to help you identify and expose these critical errors by the adverse
expert. Ask your expert, "What are the questions you would ask in cross-
examining the witness on the other side?"
When you are having these conversations with your expert witness, remember
that those conversations are potentially subject to discovery. Although the law is
uncertain in this area and it may be changing, you should always assume that any
communication between you and your expert might become the subject of
discovery. As long as you remind your expert that both of you have the same goal
of helping the jury find the truth, that is not a problem. But you should not forget
this reality when communicating with your expert.
Do you have specific "dos and don'ts" on whittling away at the credibility
of the adverse expert in the courtroom?
It is not your goal to win the case during the cross of the adverse expert. It is an
important step in your overall trial effort, but it is not the only step. Do not stand
up as you start your cross-examination of the adverse witness with the
expectation that at some point, the expert witness is going to say, "You're right;
I'm wrong." That might have happened for Perry Mason, but it is not going to
happen for you, so do not set that as your cross-examination goal.
Focus your attention on the one, two or three—and three usually is the maximum
number—explicit, specific areas where the adverse expert is wrong.
Do not try to convince the jury that the expert adverse witness is wrong about
everything. Many assumptions of the adverse expert may be correct, but the final
conclusion of the expert is incorrect because one or two of the critical steps of
the expert's analysis are wrong.
There are three possibilities: the expert's theory is wrong, their facts are wrong,
or the application of theory to that set of facts is wrong. Often it is the last one,
the application. Do focus the jury's attention on those areas where the expert is
wrong, because those are the ones you will use to win the trial.
Do not conduct the cross as if it was an expert deposition. We covered the key
differences between depositions and trial cross-examination before, but this is
worth repeating, because it is so important.
In reality, many civil litigators spend a lot more time taking depositions than they
do cross-examining witnesses at trial. Those are the realities of modern civil
litigation, with its high rates of settlement. When we human beings are under
stress, we naturally revert to our comfort zones, so there is a temptation during
the cross of an expert at trial—a very stressful event—to revert to the comfort
zone of asking questions like we do during depositions. Resist that temptation! At
trial, you need to control that expert. Do not let the expert talk about what he or
she wants to talk about at trial, because he or she will talk about things that
weaken your case. One of the battles in almost every cross-examination is the
battle over who will control the discussion. You must win that battle, so you can
focus the jurors' attention on the expert's mistakes.
Obviously, we have only scratched the surface of this issue. But are there
any other points that you feel you can't end this interview without
mentioning?
There are a lot of additional details because this is such a vast topic. After
spending the greater part of four years writing Attacking Adverse Experts, I
would not want to think that all of the tactics needed to attack effectively could be
covered in this short space.
Perhaps the best place to end this discussion is with a reminder to trial lawyers
that this is hard stuff. Taking on a scientist or other expert on his or her turf is
very challenging. It requires a lot of work, a constant attention to detail, and a
need to remember the overall goal of showing the jurors why and how an
incorrect expert is incorrect.
But it is also really fun, and really energizing. Knowing that a lot rides on your
effectiveness is scary, but also exhilarating. Nothing a lawyer can do is more
important than standing up in a courtroom and helping the jurors find the truth
despite the potentially misleading evidence from the expert on the other side.
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