Strategies to minimize your damage while inflicting maximum harm to the other side
The first thing to realize is that the title of this topic references the two sides of a coin. Dismantling an expert is something that the plaintiff and defense attorney will both be attempting to achieve and both will be hoping to rehabilitate their own experts from any damage inflicted. So you must first recognize that your goal is to inflict the most damage on their expert and minimize the damage to be inflicted on your expert.
What are the steps you need to take to inflict the most damage to their hired gun?
Let’s start with the most common methods:
• Destroy the expert’s credibility with the jury with non-opinion issues.
Bias – who does the expert normally testify for and how often? This can be effective but it really needs a significant percentage for one side or the other – in my opinion, greater than 85 to 90 percent in order to be effective.
Money – establishing that a significant portion of an expert’s income comes from legal work can often be compelling, but, again, it must be significant and it must be tied to a great percentage of testifying for the defense.
• Attack the expert’s credibility by calling into question their opinions and the basis for them.
Get to know everything about the opponent’s expert. Go online and search the Web. Find articles they have authored. Obtain transcripts from depositions or trials in which they have testified. Go on the listservs and find out who else has dealt with the expert and get all the information you can on what to expect when the expert testifies.
In other words, do your homework. Once you have prepared, prepared, and prepared some more, you will hopefully be ready for the expert’s depo. That’s when the next rule becomes extremely important.
• Don’t blow it in the depo!
Once you have the data and material to destroy the expert, what do you do with it?
Consult with your own expert. Tell your expert what you have found. Discuss with your expert how to attack the adverse expert’s opinion. Develop the cross-examination approach and get ready for the depo.
Gauge the effectiveness of your information. How likely is it that you can be so amazing in depo that the adverse expert gives up or your opponent gives up? In my experience, not so often does that happen.
Unless you feel totally sure you can destroy the expert and send them crying from the room, make the depo a fact-finding exercise. Get out all of the opinions, all of the bases for them, and once you make sure you have them all – only then do you shut the depo down.
Far too many times I have been present when adverse experts were grilled at depo with all the good stuff; they parried the questions and took notes of what they had to prepare for at trial! Don’t fall into that trap.
• So, unleash the strong attack at trial. Attack their credibility first with the material you found on bias, money, percentage for the defendant, etc. Tarnish them a little with the jury.• Then switch to their opinions and the basis for them. Did they review all the materials, review the available literature, do the proper calculations, do a report, etc.? Then go after their opinions with all the homework you did and the input from your expert. Pin them down – do not let them wiggle off the hook. No new opinions are allowed, since if you did your job in depo, they gave you all their opinions in the depo. Drill home on one or two decisive points. Hammer those points home with the witness and finish on a strong note!
Rehabilitating your expert
All of those steps I just discussed above apply to your expert but in reverse. You must develop the same information on your expert and be prepared to bring out the good, the bad and the ugly in your direct of your expert.
If money and testifying for the plaintiff are going to be an issue, bring it out first. Inquire of your expert about how much they are being paid, how much they have made in testifying, how often they testify for the plaintiff and why it may hurt, but less than when the defense brings it out.
Bring out any bad news like being blocked from testifying or stains on their reputation professionally – articles rejected, etc. Tough to deal with, but again better than the defense doing it.
Ninety-five percent of the battle of credibility is getting it out first. The worse scenario is the expert who does not let you know of something bad, and you learn about it first on cross examination. I always let my expert know that I demand that they tell me of any skeletons in the closet. There never should be a surprise.
But if it happens, act like it is no big deal. Do not show your disgust in front of the jury. Pray for a break before the redirect so you can beat the heck out of your expert and find something to salvage the situation.
Failing that, try to decide if it hurt your client that bad and, and if not, let it go. If it hurt too badly, then go in and try to salvage something of your expert’s reputation. This is where being a trial lawyer can be a real burden! But in the end, it is not the easy situation that makes you stronger as a trial lawyer but the tough situation where you have to find a way out of the mess!
Handling an expert, including your own expert, can be challenging, but like anything else we do, it’s preparation that matters.
Gary Paul is a partner at Waters, Kraus & Paul in the firm’s West Coast practice. He has spent more than three decades as a trial lawyer in complex civil matters such as consumer and medical product liability, medical and professional malpractice, commercial and insurance litigation, and employment and labor law. Paul recently served as president of the American Association for Justice (AAJ) from 2011 to 2012. He has also served as president of the Consumer Attorneys of California (CAOC) and Consumer Attorneys Association of Los Angeles (CAALA) and remains active on the Board of Governors of all three organizations. He has been recognized multiple times by the CAALA and CAOC for outstanding service to the legal profession and his community, including an election to the CAALA Hall of Fame and an unprecedented second award as CAALA’s Trial Lawyer of the Year in 2008.
by the author.
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