Qualifying and Cross examination of Experts How to Qualify an Expert Witness The Federal Rules of Evidence state, "If scientific

, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." In order for someone to properly qualify as an expert witness, he must accurately and adequately answer a specific set of foundational questions to establish his specialty. Once qualified, he may offer testimony and opinions based on his specific training, knowledge and expertise. Difficulty: Challenging Instructions 1 Qualify the witness's knowledge: Ask questions such as, "What is your current profession?", "What is your education and training?", "How long have you been practicing this specialty?", "Do you have any publications on the topic?" and "What specifically does your job entail?" 2 Qualify the witness's familiarity with the case at hand: Ask questions such as, "Are you familiar with the case at hand?", "How have you obtained information for this case?", "What investigations, labs, tests or interviews were conducted?" and "What is your basic understanding of the applicable facts for your investigation?"

QUALIFYING QUESTIONS FOR THE EXPERT WITNESS (SAMPLE EXPERT WITNESS VOIR DIRE) 1. Name. 2. Occupation. 3. Place of employment. 4. Present title. 5. Position currently held. 6. Describe briefly the subject matter of your specialty. 7. Specializations within that field. 8. What academic degrees are held and from where and when obtained. 9. Specialized degrees and training. 10. Licensing in field, and in which state(s).

duties. 29. Availability for consulting to any party. Before the Deposition. 18. Length of time practicing in this field. Your local rules will tell you how to do this. 12. Honors. and experiences (optional). and special positions in them. 23. 15. When and where your lecture or teach. 17. state agencies. Your Honor. Before you can take the deposition of your opponent's expert you must find out who he is. 27. acknowledgments. defense attorneys. 22. 28. Number of times testimony has been given in court as an expert witness in this field. Board certified as a specialist in this field. 30. Whether conducted personal examination or testing of (subject matter/ person/instrumentality). 14. 1. If you follow the method described below. it will also be one of the most effective ones. DEPOSING YOUR OPPONENT'S EXPERT Deposing your opponent's expert can be one of the most important parts of your trial preparation. Positions held since completion of formal education. 13. Length of time at current position. 19.11. and awards received by you in your field. Specific employment. Duties and function of current position. Length of time certified as a specialist. Publications by you in this field and titles. law enforcement agencies. pursuant to (applicable rule on expert witness). Number of these tests or examinations conducted by you and when and where were they conducted. 26. Membership in professional societies/associations/organizations. and length of time in each position. 25. Length of time licensed. 24. 21. IV. Requirements for membership and advancement within each of these organizations. Teaching or lecturing by you in your field. 20. I am tendering (name) as a qualified expert witness in the field of_____________________. Put curriculum vitae or resume into evidence. . 16.

or the opinions he was asked to consider giving. you should ask for at least the following: 1. In addition to the discoverable reports and writings that were requested in the demand for a witness exchange. get any admissions you can. All documents reflecting or relating to any communication between the expert and opposing counsel. including any documents. your goals will be to exhaust the witness's qualifications. 8. 5. In the deposition. employment. He will also have a pretty good idea of your theories to help him prepare for his deposition of your expert. your opponent will have had the benefit of seeing what a really good deposition of an expert looks like. and explore any possible sources of bias. you should include a document request. All documents reflecting or relating to other cases in which he has testified as an expert. your expert will have the benefit of knowing what the other side's expert said and can avoid pitfalls and help you to develop lines of inquiry. his area of expertise. All other documents relating to the engagement. 4. All documents reflecting or relating to any preliminary opinions or conclusions. or the outcome of the case. including any communications with witnesses. and professional history and any other documents reflecting or relating to his qualifications to testify. including transcripts. his preparations to opine. the opinions he expects to give. that reflect the substance of his testimony.When you notice the other side's deposition. If your expert goes last. you will explore with him all the areas that you expect to cover with your own witness. On the other hand. the terms of his engagement. . Your own expert is one source of such information but you should not limit yourself to any one source. All documents consulted or relied upon by the expert in connection with the engagement including those he consulted or relied upon in forming his opinions. 7. including such things as engagement letters. There are two schools of thought about whether it is better to try to take the deposition of your opponent's expert before or after that of your expert. and the potential weak spots in his opinions. In addition. All documents reflecting any communication relating to the engagement. 2. 3. the court in which the action was pending. Copies of all professional publications to which he has written or contributed. Before the deposition. and his opinions. 6. you should learn as much as you can about your opponent's expert. All documents relating to his educational.

Determine the witness's degree of confidence in each of his opinions in an attempt to distinguish between firmly held conclusions and mere guesswork or speculation. As with all similar types of questioning. This works two ways: . Ask the closeout questions. You should end up with a list of characteristics of this case with which the witness is unfamiliar or inexperienced. Then ask the witness open ended questions about what additional preparation or procedures might have been helpful to him. Ask the witness whether it would have been helpful to have done specific additional items of preparation. you should not leave the area of the witness's qualifications until you get an unequivocal "no" to a question like "Do you have any other qualifications or experiences that fit you to express an opinion in this case?" After you exhaust the witness's qualifications. Look for differences between the facts of this case and situations with which the witness has had experience. Ask whether the results of the additional procedures might have changed his opinions in any respect. Find out all the opinions and conclusions he has reached or was asked to reach. Find out the basis. have you?" In addition. You want to know everything the witness did and should not leave this area until you get a satisfactory answer to your closeout questions.You exhaust the witness's qualifications by first getting a narrative description of all of the qualifications and experiences that the expert believes qualify him to give an opinion in your case. you do the same thing with respect to the witness's preparation to render an opinion. For example. Next you exhaust the witness's opinions. Find out the reasons why or why not. you should look for differences between the kind of opinion that the witness seeks to give at trial and the kind of opinion that the witness is required to form in his own work. Find out why or why not. Ask the closeout questions. Then. Ask whether relevant alternative facts might result in a different conclusion. You can then use these admissions to exclude the witness's testimony or attack his credibility at trial with questions like "Isn't it a fact that you've never treated even a single person for a broken leg where there was also extensive damage to the kneecap?" or "You've never appraised a regional shopping mall before. 2. get specific about what was not done. Ask the closeout questions. it is important to ask the closeout questions. The goal with this kind of questioning is to limit the areas of the witness's expertise to exclude some or all of the areas material to the case. Find out all the facts upon which it is based. the branch manager of a stock brokerage firm who is being called to give an opinion about the suitability of an investment recommended by the defendant to the plaintiff may never be called upon to make investment recommendations in his daily work of supervising other brokers and office operations. For example. if any. For each opinion: 1. Find out why any admittedly valuable procedures were not done. for those facts. Find out why or why not.

or he says that obviously material facts wouldn't affect his opinions. 3. he won't be very credible. 2. If he admits that certain facts would change his opinion. conclusions. you should have gotten most of the useful admissions that could be obtained concerning the expert's expertise. or other sources of information upon which you intend to rely. while an argument can be made that many documents prepared by or reviewed by the witness are work product. maybe you can prove those facts at trial and turn him. Ask whether the witness reviewed any documents when he was preparing to testify. Ask about each category of document you requested and ask whether the witness knows of any documents in the category that were not produced. You should be aware that. ask the witness all the questions you will or might ask your own expert. he may hurt his credibility. and make sure that you have copies of them. Next. and assumptions. in effect. National Steel Products Co. Find out whether the contradictory opinions are based on different assumptions. In addition. e. Find out the precise nature of the disagreement. If the witness claims an improbable degree of confidence in his opinions. Find out whether there is more than one school of thought in the community of experts. If so. his opinions will carry less weight. ask whether the expert's opinion would change if he accepted the same facts as your expert. or assumptions are less than secure. ..g.a. His opinion on many matters may support your theories and will be far more convincing on these points than those of your own witness. During the course of completing the above lines of questioning. For each answer that contradicts your own expert or theory: 1. If the witness admits that some of his opinions. If there are no facts that could change his opinion. cases in this area have held either that the designation of an expert to testify waives any work product or attorney-client privilege or that counsel's need to cross examine the expert on materials covered only by work product protection outweighs that protection. opinions. preparation. b. including personal notes. try to get admissions concerning the expertise of your own experts and the reliability of any treatises. Start by asking how the documents he brought with him or provided through counsel were gathered or selected. you should ask the witness about the documents. If so. Ask him what other changes in the facts might change his opinions. see if you can get the hostile expert to admit that there is a substantial body of thought that supports your position. See. tests. v. Also ask pointed questions about more specific kinds of documents that fall into the categories and that were not produced but that you believe or suspect exist. Finally. into your witness.

2. your cross examination will be easy. Asking only questions that the witness has already answered in the deposition. Save a good question for last. effective. 6. that was answered unequivocally in your favor. if your deposition was done properly. SIT DOWN! If you don't get the same . 4. Elicit any assumptions that can be disproved or questioned. that is put in precisely the same terms as in the deposition. 540.App. 712.Sup.3d 477. Sup. County of Los Angeles v. and free of risk. 488.Rptr. with your opponent's counsel. 210 Cal. In particular. and with the plaintiffs' or defendants' bar. 274 Cal. Elicit any damaging admissions concerning any issues in the case. elicit the witness's assertion that his opinion would be unchanged even in a hypothetical case that obviously cries out for the opposite conclusion. you: 1. and methods. tests.3d 1446. and the answer to which cannot be changed now by the witness without massive damage to his credibility. Alternatively. 485. 535. 3. Bring out any admissions of the expert concerning the qualifications of your expert and the reliability of his sources. 8. Bring out any limitations in the witness's qualifications and experience. 7. explore any possible sources of bias or interest. Court (1985) 164 Cal. you should ask about the witness's relationship with the parties.App. Bring out any limitations on the preparation done and the additional work that the witness has admitted could have rendered his opinions more certain. it may be better to do so by means of a motion in limine to try to avoid giving your opponent an excuse to present the witness's qualifications in exhausting detail and to avoid investing too much time before the jury in an effort that will probably fail.Rptr. In the alternative. elicit the witness's assertions that no conceivable set of facts could have changed his opinions. Elicit hypothetical opinions that support your theory. Finally. A good last question is not an argumentative or conclusory one that will draw a valid objection or give the witness a chance to get the last word. A good question is a question that substantially helps your case. 720. Assuming that the expert is allowed to testify. Elicit any limitations on the witness's confidence in his opinions and any unbelievable expressions of confidence. V. 1458. Court (1990) 224 Cal. 5. 542. If you get the same answer you got at the deposition. and the terms of the witness's engagement and compensation. CROSS EXAMINING YOUR OPPONENT'S EXPERT AT TRIAL If you intend to try to prevent your opponent's expert from expressing an opinion.

. and then sit down.answer. remind the witness of the deposition. ask him whether he was asked the previous question and gave the previous answer. ask him whether he was under oath.

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