Attacking the Opposing Expert

• Author: Robert Clifford
• Pages: 238-337

4-236

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

Checklist for Reviewing Transcripts

§405 Motion for Summary Judgment

§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

Checklist for Document Request

Sample: Motion for Production of Expert Report

Sample: Order for the Production of Expert Witness Report

§414 Interrogatories

§415 Deposition of Opposing Expert

Pre-Deposition Checklist (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

Sample: Questions re Expert’s Writings

Post-Deposition Checklist

4-237 attacking thE opposing ExpErt

§420 Attack at Trial

§421 In General

§422 Preparing the Expert Witness Binder

§423 Preliminary Motions

§423.1 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 Preparation for Trial Cross-Examination

§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

Qualifying and attacking ExpErt WitnEssEs 4-238

§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