C. No patience. Not satisfied with making points; need to argue with expert/Saving it.
D. No preparation. This starts at deposition stage right up to trial. Scripted but open
ears.
-Never ask a question to which you do not already know the answer. You are looking for
evidence to support your final argument.
-Do not ask the witness to repeat the testimony he gave on direct.
B. Francis Wellman: The Art of Cross-Examination, 1903. Less is better: read excerpt.
1-The deposition notice duces tecum: request the ENTIRE file and CV.
3-Consult with your expert. Send CV: Qualified? Suspicious? Gather writings.
-The opinions: the ALL opinion question to set up motion in limine i.e. anti-sandbagging
motion [CCP 2034.260c4: expert declaration shall contain a representation that the
expert will be sufficiently familiar with the pending action to submit to a meaningful oral
deposition concerning the specific testimony, including any opinion and its basis, that
the expert is expected to give at trial.]
-The bases for each opinion.[Evidence Code, section 801b]: ltd basis = ltd opinion.
-The "out" is an effort by an expert to add to or change his own opinions at trial in the
guise of reacting to the opponent's experts. How prevent? Establish that additional
opinions will be a critique of what opposing expert does and NOT new original opinions
by the expert. Shut the door.
-Never agree to re-depose opposing expert. Why not? Let him off hook + expense.
-WHEN reached opinions? Before had information upon which to base it?
-FRCP, Rule 26a2B: Expert report required that lists any other cases in which the
witness has testified as an expert at trial or by deposition within the preceding 4 yrs.
-How obtain? Either request in duces tecum deposition notice or get from court.
-Doctor: need for future surgery/causation/life expectancy/need for attendant care etc.
10-Look at CACI and refresh memory on how a jury is to evaluate the believability of
expert testimony [CACI 219] and how a jury is to "weigh" it. [CACI 221]. READ...
-CACI 219: Consider expert's training, experience, facts relied on and reasons for
opinion.
-CACI 221: When weighing conflicting expert opinions examine qualifications, facts or
other matters relied on and reasons given for each opinion.
-Verdict publications like Verdict Search California (formerly Jury Verdicts Weekly).
-Other lawyers who do what you do. I got program material a vocational rehabilitation
expert in swimming pool case re "How to be an Expert Witness".
-Internet:
-Web in general.
-Complete? Anything missing? Ask yourself why "x" included? Source? [attorney; look
for fax numbers].
-Independent research?
IV. Preparing the PLAN of attack. Purpose: Diminish the WEIGHT of the expert.
Visualize the "weighing" process to be argued in final argument. [CACI 221]. Guideline:
Evidence Code, section 721a. READ it....
-First such case. Don't confuse with first time as an expert witness.
-Eliminating opinion: This can be done by motion in limine, a trial voir dire of the expert
[Evidence code, section 802], or directly during cross examination.
-Deferral/disqualification question.
-Cannot meet the legal standard. Does not know standard or only "possible"/Is the
subject matter beyond common experience? [Evidence Code, section 801a]
-Expert may not testify on legal issues. Although an expert may be allowed to testify on
ultimate issues to be decided by the jury, an expert cannot offer opinions on subjects
like nondelegable duty, negligence etc. [Evidence code, section 805; Summers v. A.L.
Gilbert Co. (1999) 69 CA4th 1155].
-Remember: Evidence Code, section 801b says hearsay OK but must be trustworthy +
necessary.
-Two cases:
-Korsak v. Atlas, (1992) 2 CA4t 1516: The falling shower head case with ME expert who
does an informal hotel maintenance survey. Not reliable or necessary. I have in a
current case. This comes up.
-Whitfield v. Roth, (1974) 10 Cal 3d 874: Two defense doctors allowed to testify about
whether early x-rays showed a brain tumor. Expert #1: radiologist called in 4 colleagues
who agreed with him it did not. Expert #2: neurosurgeon at Stanford showed x-rays at
grand rounds to 50 students, residents and faculty and all agreed with him it did not.
Cannot rely on the out of court opinions of others as a basis. Neither trustworthy or
necessary.
-Example: Appraiser's opinion re real estate value based in part of comparables. Point
out the comps are wrong, incompatible or were overlooked. Might this change your
opinion? Then change basis and test it.
-Example: Defendant expert: Product not defective. Plaintiff cross exam: Product not
defective in design? Not saying no manufacturing defect possible?
-The reasons for the expert's opinion. [CACI 219] (Evidence Code, section 721a)
-Bias: interest, money, frequency testifies for one client, type of client or atty, 1 sided, %
of income (professional witness).
-Impeachment.
-Other publications: Evidence code, section 721b. READ it.... Reliance NOT necessary.
If foundation satisfied, may read in portions of writings but may not receive as exhibit in
evidence. [EC 721b3].
-Incomplete or inadequate work up. E.g. one visit to defense doctor v. many to treating
physician.
C. List all the points in order of strength. Pick out the 3-4 best points and plan to
establish them clearly and stop.
D. Create the outline of a cross examination with all references: The PLAN.
-Points: page and line. Don't write out questions verbatim except impeachment
opportunities.
-Anti sandbagging.
-Deposition + summary.
C. Consider voir during the expert to head off the opinions at the pass. [Evidence Code,
section 802]. Strategy: Knock it out before jury hears it versus handling it on cross.
D. Be flexible. Ask yourself: Did he hurt me? If not, STOP. Remember Wellman quote.
E. Illustrating the points: Visualize. Put on paper and mark it. Jurors will write it down.
-Example: Recent MM case, def trained in Philly, mentor in Philly, expert from Philly
with strong connection with mentor. But expert denied that knew def and mentor had
nothing to do with his involvement. I wrote Philadelphia on sheet before any questions.
F. Examine expert's file taken to stand. Mark it so cannot take it with him in evening.
-Example: The expert who forgot to remove a sticky saying: "Meet with my lawyer to go
over my testimony"
G. Impeachment: 3 steps...no requirement to show it to him [EC 769] or explain.
-Commitment/glorification/impeachment.
-Video impeachment: Explain how it works. Same steps + "I'd like to play page x, lines
1-10 of Mr. Y's deposition". Witness impeaches himself.