BUILDING BLOCK #6
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.
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.
3. Adequacy of BASIS FOR OPINION.