Yet Another Tip For Cross-Examining Defense Experts

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This one is courtesy of Dorothy Clay Sims. We often see expert witnesses with resumes three feet thick, full of impressive-sounding credentials like faculty appointments, society memberships, and consulting gigs.  Most lawyers start off experts with a long recitation of their knowledge, skill, experience, training and or education.  This is unadulterated effort to impress the jury.  The expert is saying, I’m crazy smart and qualified and you should listen and believe what I’m telling you. Most experts that testify sound great on background.  I’m rarely not wildly impressed.

Bloated Resumes Look Bad

But what if that resume is a lot of puff.  If you can prove it is just a little puff, it tears down the veneer of credibility the expert is trying to build.  Often, it pays just to ask. Just recently, I found three inaccuracies on a defense expert’s C.V.

cross-examining defense expertsFirst, he listed himself as an instructor at a national judicial college and a guest lecturer at a local law school from “1990-present.” So I did some research. I found out that the national judicial college hadn’t even offered the course he taught in the last two years. I found out that the law school did not list him in the faculty directory (where even part-time and adjunct faculty are listed). When asked, he admitted that he hadn’t done either of these things in at least the last five years.

He listed himself as a “consultant” to the Maryland Worker’s Compensation Commission at an address ten years out of date. His explanation was that he doesn’t go there very often. I guess they don’t send him mail much, either.

Now, is this a silver bullet that takes out an expert’s credibility with one shot? Of course not. But if you can show the expert has misrepresented his qualifications, even a little, it’s a great beginning for sowing seeds of doubt in the mind of the fact-finder. This is especially true if you can build upon this theme in the rest of the cross. How objective is the guy who embellishes (or lies) on his resume? Can you really trust his opinions? These are the questions you want in the mind of the fact-finder.

What Is the Silver Bullet?

There really is no one silver bullet.  But the biggest thing jury’s hang experts on is the failure to do their homework.  If any expert did not do everything possible to make sure they came to a right conclusion, a jury will hold that against them.

The second path to undermining an expert is showing bias.  The most common bias we all look for is financial.  We have burned more than our fair share of trees chasing elusive experts who will are evasive on how much money that are making from litigation and from defendants in particular.  But that is not the only basis for bias.  Questions about the dynamics of the relationship between the retaining attorney and the expert are worth exploring.  I remember an expert once testifying he did not talk to the defense lawyer during his multi-day testimony but later admitted having a nice steak dinner with wine with the lawyer the night before.  This is a simple bias for the jurors to understand.