BUILDING BLOCK #6
EXPERTS
At the end of the course
you should be able to perform the following with regards to the direct
examination of expert witnesses:
1.
ORGANIZE the direct testimony of the expert:
A.
INTRODUCE the expert.
1)
“Dr.
Jones, would you introduce yourself to the ladies and gentlemen of the jury?”
2)
If
unusual field, need to explain. “Dr.
Jones, you said you are a mass spectrometry chemist, what exactly is a mass
spectrometry chemist?”
“Is one of the things a mass
spectrometry chemist does is to test metal to see if it has flaws?”
B.
Give a TEASER
“Have you been asked to come here today and give your opinion on whether
the rudder attachments in the plaintiff’s plane were defective? Before we get to your opinion, let’s find out
what qualifies you to give this opinion.”
C.
QUALIFY the expert.
1)
Slant
the credentials to the opinion the expert will be giving. Avoid the category approach.
2)
Give as
much human interest as possible.
3)
Anticipate
any cross examination on credentials.
4)
Some
courts allow resumes to be introduced.
5) May want to hold back some credentials until later in the examination when they become more relevant. Consider bringing in some of the credentials at that point of the examination when they become relevant to what the expert did.
D.
TENDER the expert with a flourish with those
judges permitting or requiring tendering.
E.
Ask for the expert’s OPINION.
1)
May want
to do basis first.
2)
Use a
visual if possible.
3)
Opinions
must be to a reasonable degree of certainty or probability (or both). Some courts require that this be done through
a two-step magic question: “Dr. Jones, do you have an opinion to a reasonable
degree of certainty/probability as to whether the metal in the rudder
connection was defective? What is that
opinion?”
F.
Elicit the BASIS FOR THE OPINION.
1)
Many
different organizational schemes. One
possible organization:
a.
Usual
procedure in arriving at opinion.
b.
Why
follow that procedure
c.
Procedure
in this case
d.
What
found.
e.
Significance
of findings
2)
Use
plain and understandable language.
Translate any jargon.
3)
Encourage
powerful, persuasive language.
4)
Use
examples and analogies.
5)
Use
internal summaries where long.
6)
Avoid
narratives unless excellent teacher.
7)
Tie into
greater authority; point out consensus.
8)
Use
visuals.
9)
Anticipate
cross examination.
10)
Don’t
try to turn jury into experts.
G.
Explain the DIFFERENCES between your expert and
the opponent’s expert’s opinion.
H.
Conclude with OPINION AGAIN–“Having review Dr.
Smith’s report, do you still have the opinion that the metal in the rudder
attachment was defective?”
2
Be able to CROSS EXAMINE the expert.
A.
All the RULES OF CROSS EXAMINATION apply to
experts in spades.
B.
Consider whether to VOIR DIRE on qualifications
and basis for opinion.
C.
Areas of cross examination:
1.
FAVORABLE
ADMISSIONS.
2.
QUALIFICATIONS
and/or LIMITING EXPERTISE.
3.
Correctness
of ASSUMPTIONS.
4.
Varying
ASSUMPTIONS.
5.
BIASES.
6.
Lack of
PERSONAL KNOWLEDGE.
7.
QUALITY
of information relied on.
8.
What
expert HAS NOT DONE.
9.
Selection
of data or procedures by OTHERS.
10.
ERRORS
in calculations.
11.
OMISSION
of significant facts.
12.
LEARNED
TREATISES.
D.
Avoid cross examination challenging:
1.
ANALYSIS
or LOGIC.
2.
INFERENCES
3.
Adequacy
of BASIS FOR OPINION.