By James J. Mangraviti, Jr., Esq.
To excel during cross-examination, experts should understand what they are likely to be asked. In fact, experts should consider the likely areas of cross-examination they will face as part of their preparation process. The expert should prepare truthful and artful answers to these questions.
Experts are likely to be questioned on some or all of the following areas concerning their potential bias.
• The expert handles multiple cases for the same client or insurance company.
• The expert has an ongoing professional relationship with retaining counsel.
• The witness’s opinion is the same or virtually the same in every case.
• How much the witness is paid for his work on the case.
• The expert has an indirect financial interest in the case. For example, a case involving unpaid medical bills where the expert is also a treating physician or a case involving financial interest, such as stock ownership in a potentially affected party.
• The expert is a “professional witness” whose livelihood substantially depends upon his work for attorneys. Therefore, he is highly motivated to give retaining counsel the testimony she needs.
• “Speeches” made by the expert during testimony that indicate bias. For example, speeches against plaintiffs and plaintiffs’ lawyers.
• The expert’s affiliation with biased organizations.
• A personal relationship between the expert and a party or attorney in the case.
• The topics or audiences addressed during past presentations given by the expert.
• The expert’s out-of-court statements.
The expert should also expect to be questioned on her qualifications. The following areas are ripe for questioning.
• Any and all false or misleading information on the expert’s curriculum vitae (CV).
• Awards or commendations listed on a CV, especially those that seem overstated.
• The expert’s membership (or lack thereof) in organizations.
• The quality and relevance of the expert’s real world experience.
• Extensive areas of expertise listed on a CV suggesting that the expert could not realistically be an expert in all these areas.
• The expert’s publications, including whether the expert’s CV represents them accurately. For example, an article is listed as published when it was merely submitted for publication or failing to list co-authors.
• Any and all self-serving characterizations of the expert’s qualifications. For example, an expert who refers to herself as “nationally known.”
• Any past professional errors or miscues made by the expert.
• Missing professional certifications, such as the failure of a physician to be board certified.
• Any lack of formal education or degree.
• The expert’s knowledge of any and all applicable statutes, standards, or regulations.
• The expert’s knowledge and familiarity with the relevant literature.
The expert’s opinions and the bases for these opinions are also fair game for cross-examination. These include the following areas.
• The reliability of the expert’s methodology used to formulate an opinion. This includes the factors dealing with reliability commonly addressed in Daubert challenges. The following questions must be answered. (1) Can the expert’s theory be tested or has it been tested? (2) Is there general acceptance of the expert’s methodology within the relevant scientific community? (3) Has the methodology been subjected to peer-reviewed publication? (4) What is the known or potential error rate of the expert’s methodology?
• The factual assumptions upon which the expert opinion is based. An expert opinion is only as good as the factual assumptions upon which it is based.
• Conflict between the expert’s opinion and potentially more qualified experts.
• Any underlining or notations made by the expert in the documents the expert used to formulate her opinion.
• Any information or records that the expert did not have available when forming her opinion. The cross-examiner will try to show that the information that was not considered might have changed the expert’s opinion.
• The parts of documents provided to the expert that were not reviewed by the expert. These may have contained important information.
• The numbers, figures, and formulas used by the expert.
• Any passage of time between the incident in question and the expert’s examination or inspection because conditions or circumstances may have changed.
• The amount of time spent on the case. Did the expert pad her bill? Was there a rush to judgment?
• Reliance on the opinions or reports of other experts. Can these be verified? Were they reliable?
• The degree of certainty the expert maintained when expressing her opinion or factual assumptions. Was it merely possible? Probable? How likely is it that the expert is mistaken?
• The standard of care the expert applied if this is a professional malpractice case. The expert cannot reliably testify regarding the standard of care if she does not have a complete understanding of the standard of care as it applies in the jurisdiction in question.
Experts should prepare for direct assaults on their credibility. Cross-examining counsel might ask questions on the following subjects.
• Any criminal convictions.
• Violations of discovery or other court orders.
• Skeletons the expert may have in the closet, such as past ethical, professional, financial, or personal problems.
• Any failure to comply with professional ethical standards.
• Any improper or unethical fee agreements.
• Mistakes on the expert’s curriculum vitae. If an expert can’t get his own CV correct, how likely is it that his opinion is correct?
• Any past judicial findings that the expert’s testimony was not believable or reliable.
Experts may face questions about learned treatises. Is the expert willing to testify that any language is authoritative?
The cross-examiner may ask questions concerning any potentially improper relationship between the expert and retaining counsel, including the following.
• The content of cover letters/emails from and to retaining counsel. These should be kept as short as possible.
• Preparation sessions and meetings with retaining counsel. Why did the expert need to meet for hours and hours in secret closed-door sessions with a lawyer if the expert was merely going to tell the truth?
• All “assistance” from retaining counsel in forming opinions. Did counsel tell the expert what to say? Did he provide selectively limited information?
The expert’s marketing activities may also be scrutinized. Experts should expect questions regarding the following.
• The expert’s Web page. Is the information contained therein accurate, professional, and up-to-date?
• The expert’s print and online advertisements.
• The expert’s direct mail solicitations.
James J. Mangraviti, Jr., Esq., has trained thousands of expert witnesses through seminars, conferences, corporate training, training for professional societies, and training for governmental agencies including the FBI, IRS, NYPD, Secret Service, and Department of Defense. He is also frequently called by experts, their employers, and retaining counsel to train and prepare individual expert witnesses for upcoming testimony. Mr. Mangraviti assists expert witnesses one-on-one with report writing, mentoring, and practice development. He is a former litigator who currently serves as Principal of the expert witness training company SEAK, Inc. (www.testifyingtraining.com). Mr. Mangraviti received his BA degree in mathematics summa cum laude from Boston College and his JD degree cum laude from Boston College Law School. Mr. Mangraviti has designed dozens of expert witness training programs and has personally taught experts in a group setting over 200 times since 1997. He is the co-author of thirty books, including:
How to Be an Effective Expert Witness at Deposition and Trial: The SEAK Guide to Testifying as an Expert Witness How to Be a Successful Expert Witness: SEAK’s A–Z Guide to Expert Witnessing How to Write an Expert Witness Report; How to Prepare Your Expert Witness for Deposition; The Biggest Mistakes Expert Witnesses Make and How to Avoid Them; and How to Market Your Expert Witness Practice: Evidence-Based Best Practices.
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