Crain Lewis Brogdon, LLP Beating the Expert QUENTIN BROGDON  Crain Lewis Brogdon, LLP Dallas, Texas 214-598-1009 cell   qbrogdon@crainlewis.com

“An expert is a person hired to divorce yourself from your common sense.” Mark Twain

“Make 3 correct guesses consecutively and you will establish a reputation as an expert.” Lawrence Peter

Francis Wellman

Assume an expert “has come prepared to do you all the harm that he can, and will avail himself of every opportunity to do so which you may inadvertently give him.”

Cross-Examination

Attorney vs. Expert

The Deposition

Strategy and Goals

Discovery or Trial Depo?

Discovery Deposition Goals

Trial Deposition Goals

Control, Control, Control

To Cross or Not to Cross?

The Art and Science of Cross

Francis Wellman

“Great lawyers have failed lamentably in [cross], while marvelous success has crowned the efforts of those who might otherwise have been regarded as of a mediocre grade in the profession.”

Need “infinite patience and self-control; power to read men’s minds intuitively, ability to act with force and precision; a masterful knowledge of the subject matter itself, the instinct to discover the weak point in the witness under examination.”

“Ninety percent of the game is mental, and the other half is physical Yogi Berra

Myths of Cross

Younger’s 10 Commandments

1. Be brief. 2. Short questions & plain words. 3. Only leading questions. 4. No questions with unknown answers. 5. Listen to answer.

6. Don’t quarrel with witness. 7. Don’t allow witness to explain. 8. Don’t repeat testimony from direct. 9. Avoid one question too many. 10. Save explanation for summation.

Lead Adverse Experts

TRE 611 “When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.”

Your Cross-Exam Persona

Francis Wellman

Jurors’ sympathies “are invariably on the side of the witness, and they are quick to resent any discourtesy toward him. They are willing to admit his mistakes, if you can make them apparent, but are slow to believe him guilty of perjury.”

Lamented “lawyers who act as if they thought that every one who testifies against their side…is committing willful perjury ...By their shouting, browbeating style they …fail to discredit him with the jury and elicit sympathy for him.”

Preparation

Keep in Mind

Getting in the Mud With an Expert

“Trying to rough up a legitimate expert during cross-examination is like pig wrestling; two things happen: you get dirty and the pig likes it.”

Francis Wellman

“It is unwise for the cross-examiner to attempt to cope with a specialist in his own field of inquiry. Lengthy cross-examinations along the lines of the expert’s theory are usually disastrous and should rarely be attempted.”

“it only affords an opportunity for the [expert] to enlarge upon the testimony he has already given, and to explain what might otherwise have been misunderstood or even entirely overlooked by the jury.”

Four Hurdles

1. Knowledge hurdle. 2. Helpfulness hurdle. 3. Qualifications hurdle. 4. Foundation data.

Helpfulness Hurdle- Reliability 1. Tested? 2. Rate of error? 3. Peer review? 4. Generally accepted by scientists? 5. Relies on subjective interpretation? 6. Non-judicial uses?

Conclusion Starts at beginning. Preparation, game plan, and knowing the law.