Attacking the Opposing Expert

AuthorDavid J. Galluzzo
Chapter 4
Attacking the Opposing Expert
§400 Pretrial Attack
§410 Proceeding With Discovery
§420 Attack at Trial
§430 Cross-Examination
§440 Lack of Basis for Opinion
§450 Hypothetical Questions
§460 Rebuttal
§470 Restricting Demonstrative Evidence
§400 Pretrial Attack
§401 Introduction
§402 Identification of Opposing Expert
§402.1 Discovery of Computer Generated Information
§403 Consulting With Your Client and Expert
§404 Locating Prior Testimony of Opposing Expert
§405 Motion for Summary Judgment
Checklist for Reviewing Transcripts
§406 Pretrial Challenges to Opposing Scientific Expert Testimony
§407 Ex Parte Contact with Opposing Expert
§410 Proceeding With Discovery
§411 Establishing a Discovery Plan
§412 Timing of Discovery
§413 Document Production
Sample: Motion for Production of Expert Report
Sample: Order for the Production of Expert Witness Report
Checklist for Document Request
§414 Interrogatories
§415 Deposition of Opposing Expert
§415.1 Areas of Inquiry
§415.1.1 Qualifications
§415.1.2 Information Relied Upon by the Expert
§415.1.3 Expert’s Opinion
§415.1.4 Deposition Questions re Inconsistency
§415.1.5 Deposition or Interrogatory re Writings
§415.1.6 Reliance on Authorities
§415.1.7 Bases for the Expert’s Opinion
§415.2 Establish What the Expert Does Not Know
§415.3 Prepare by Reading the Expert’s Publications
§415.4 Use Speculation to Illustrate Weaknesses in the Expert’s Position
QAEW 4-2
§415.5 Be Served and Not Bound by Your Outline
§415.6 Shuffle your Deposition Questions to Minimize Predictability
§415.7 Strategically Combine Different Deposition Topics
Post-Deposition Checklist
§420 Attack at Trial
§421 In General
§422 Preparing the Expert Witness Binder
§423 Preliminary Motions
§423.1 Motion in Limine
Sample: Motion in Limine
§423.1.1 In General
§423.1.2 Importance of Motion in Limine
§423.1.3 Grounds for a Motion in Limine to Exclude Expert Testimony
§423.1.4 Necessity to Object at Trial
§423.1.5 Form of Motion
§423.2 Motion to Exclude Witnesses
§424 Disqualifying the Opposing Expert
§424.1 The Expert’s Experience Is Not Relevant
§424.2 Cumulative Evidence
§424.3 Ultimate Issue
§424.4 Lack of Proper Foundation
§424.5 Prejudicial Evidence
§424.6 Undisclosed Expert
§424.7 Improper Subject of Expert Testimony
§424.8 Speculative or Conjectural Evidence
§424.8.1 Malingering
§424.9 The Expert Has Destroyed Evidence
§424.10 The Expert Has Not Complied With Disclosure Requirements
§424.11 Expert Opinion Is Unnecessary
§425 Objections to Direct Testimony
§425.1 The Question Is Too Broad
§425.2 Questions Calling for Hearsay
§425.3 Lack of Foundation
§425.4 Ambiguous or Unintelligible Questions
§425.5 Opinion Beyond the Expert’s Qualifications
§425.6 Cumulative Questions
§425.7 Leading Questions
§425.8 Speculative Questions
§425.9 Irrelevant Questions
§425.10 Question Assumes Facts Not in Evidence
§425.11 Improper Rehabilitation
§425.12 Not a Proper Subject for Expert Opinion
§430 Cross-Examination
§431 Introduction
§431.1 Capitalize on Your Superior Knowledge of Facts and Law
§431.2 Choose No More Than 5 Key Points
§431.3 Cite Inconsistencies in Prior Statements
§431.4 Probe for Weaknesses in Collateral Areas
§431.5 Categories of Cross-Examination Challenges
§431.6 Checklist
§431.7 Tactics
§431.8 Preparation for Trial Cross-Examination
4-3 AOE §402
§432 Should the Expert Be Cross-Examined?
§433 Selected Areas of Cross-Examination
§433.1 Qualifications
Sample: Cross-Examination re Qualifications
§433.2 Compensation
§433.3 Employment by a Party
§433.4 Undeviating Position
§433.5 Full-Time Expert
Sample: Cross-Examination re Full-Time Expert
§433.6 Improper Assumptions in Reaching Opinion
§434 Inconsistencies
§434.1 With the Expert’s Deposition
§434.2 With Prior Testimony in Other Cases
§434.3 With the Expert’s Published Work
§434.4 With Authorities
§434.4.1 Cross-Examination of Opposing Expert re Use of Authorities
Sample: Cross-Examination re Establishing Authoritativeness
Sample: Cross-Examination
§440 Lack of Basis for Opinion
§441 Lack of Training or Experience
§442 Lack of Research
§443 Reliance on Others
Sample: Cross-Examination
§444 Lack of Proper Basis for Opinion
§445 Presentation of Summaries of Documents
§450 Hypothetical Questions
§460 Rebuttal
§470 Restricting Demonstrative Evidence
§400 Pretrial Attack
§401 Introduction
The success or failure of a trial frequently depends upon your ability to attack the opposing expert
effectively. To reduce the force of the opponent’s expert, you should educate yourself not only about the matter
at issue, but you should also gain extensive information about the expert including his qualifications, or lack
thereof, the opinion, and the facts and data upon which the opinion is based. Use a variety of pretrial procedures
to obtain information about the opposing party’s expert and his opinions. In addition to the formal procedures
such as interrogatories, requests for admissions, demand for exchange of witnesses and depositions, consultation
with your own client, your own expert and attorneys who might be familiar with the opposing expert, is advisable.
§40 2 Identification of Opposing Expert
After determining whether the opposing party intends to rely upon expert testimony, learn the identity of these
experts. In most states, interrogatories or a demand for identification of experts will disclose the expert’s identity as
well as general background information.
F.R.C.P.26 prescribes a mandatory duty of disclosure. Rule 26 requires a party to disclose without
any formal discovery request the identity of all of the experts who will testify. The disclosure also must be
accompanied by a written and signed report if the expert is specially retained to testify or is a person whose duties
as an employee of the party regularly involve giving expert testimony. The report requires detailed information
including the following:

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