Attacking adverse experts

As expert testimony can make or break a lawsuit, skill in handling experts is invaluable, particularly in cases of dueling testimony. Attacking Adverse Experts author Stephen Easton, a seasoned trial lawyer and law professor at the University of Missouri, offers tried-and-true advice on dealing with experts to help ensure trial success.

Your book is called Attacking Adverse Experts. That sounds pretty aggressive, especially in the current ADR world. Why do you advocate "attacking" witnesses?

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 helping the jury find the truth is helping them distinguish between the expert who is correct and the one who is incorrect.

In cases where the case goes to trial and two experts are testifying to dramatically opposite opinions about the same issue—and that happens quite frequently—one of the experts is wrong.

The job of the lawyer who is on the correct side is to point out how and why the 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 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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