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Advertising/Marketing/Promotion

You do advertise that, for a price, you are available to testify, correct?
You advertise yourself as an expert for hire, is that correct?
You promote yourself as an expert witness by using a website?
You are represented by an expert witness referral agency that obtains work for you
through advertising, emails, sponsorships, and bulk mail solicitations, is that correct?
How do you promote your expert witness practice?
Is this a copy of the ad you use to promote your expert witness business
inTrial magazine?
Do you solicit expert witness work from both plaintiffs and defendants?
Advocacy
You are here as an advocate for the plaintiff, correct?
What do you think your purpose and function are in this case?
Do you think the party that retained you should prevail?
At trial you will try and persuade the jury, correct?
Are you trying to help retaining counsel win the case?
Should the jury be suspicious of expert witnesses who offer diametrically opposed
opinions?
You have testified in 38 different states as an expert witness. Is that correct?
You spend 100% of your professional time consulting with attorneys and working on
lawsuits, correct?
You are a professional expert witness, correct?
Do you enjoy being an expert witness?
Do you think the defendant in this case should prevail?
Are some lies permissible in your own personal code of conduct?
Did you assist retaining counsel in preparing his case?
What did you do to prepare for your testimony here today?
When was the last time you lost a case?
Are you aware that you are under oath and that your responses will in essence become
part of your permanent record that can be brought up in all future cases that you testify in?
Would you like your side to win this case?
Whom do you represent?
Assumptions
What are all the assumptions you made in the case?
If the factual assumptions you based your opinion on were incorrect, would you change
your opinion?
If the assumptions on which your opinion is based were to change, could that change
your opinion?
If you were to assume the examinee lied to you, would that change your opinion?
Did you verify the facts provided to you by Attorney Smith?
Your opinion is based on the assumption that the road was dry, correct?
You would agree with me that there are circumstances in which employees who are
under the influence of alcohol or intoxicating substances have poor judgment in terms of
the safety that they use on a work site?
What assumptions did you make in reviewing the records in this case?
Do you know why counsel hired an expert witness who lives 1,500 miles from here to
testify in this case?
Authoritative Texts
What are the reliable texts in this field?
What are the authoritative textbooks in this area?
Do you consider the latest edition of the Diagnostic and Statistical Manual of Mental
Disorders to be authoritative?
Do you consider any text authoritative in the field of the evaluation of permanent
impairment?
You stated that your opinion was supported by the literature. What literature are you
referring to?
Which journals are the most authoritative in this area?
Bias
You testify mostly for plaintiffs, do you not?
Have you ever lied?
You testify for the party that pays you, correct?
In all of the other forklift cases in which you have testified, you have always blamed the
operator for the accident, correct?
Why didnt you report your findings of an unreasonably dangerous product to the
Consumer Products Safety Commission?
You believe the tort system should be reformed, do you not?
As an expert, you hold yourself out as an authority for the side thats presenting a
particular proposition in this legal case, correct?
Who is your client in this case and what duty do you owe your client?
If the other side in this case called you first, would you have accepted the assignment?
If the plaintiff loses this case, will you still be paid the fee due to you?
What is confirmatory bias?

How to Prepare Your Expert Witness for Cross-Examination


1. Stress to your expert witness that he needs to study and prepare as though he were
studying for an important final examination. Explain that success on cross-examination is
often more perspiration (preparation) then inspiration.
2. Find out what your expert is most afraid of being asked and show your expert how to
deal with all of these issues. This will help allay your experts anxiety.
3. Explain how opposing counsel will use leading questions to control the examination.
Demonstrate this.
4. Identify potential soft spots/problem areas and explain to your expert how you will use
direct examination to try to manage and defuse these issues. Practice this.
5. Explain to your expert that he must tell the truth and should make concessions gracefully
and readily where these are called for. He who is strong everywhere is strong nowhere.
Emphasize that evasiveness and being defensive should be avoided. Explain and
demonstrate how you may use redirect examination to clear up any false impressions.
6. Grill your expert in a mock cross. If possible, have a different lawyer from your firm do
this work or hire a third-party consultant. Hit the expert hard in their weakest areas. Attack
them in unexpected or tangential areas and see how they respond.
7. Provide feedback to your expert on their body language. (Many experts exhibit nervous
behaviors during cross that could be interpreted as indicating deceit. Break your expert of
any such habits).
8. Show your expert how the facts can be their best friend. When opposing counsel is
throwing around hypotheticals or distortions, teach your expert how to use facts to pop
counsels bubble. Remind your expert to return to the facts and other safe havens when he
finds himself in trouble.
9. Teach your expert to not let opposing counsel cut him off. This is often one of the
hardest things for an expert witness to learn.
10. Demonstrate to your expert witness how to seize opportunities and jump on mistakes,
such as being asked a why or other open-ended question by opposing counsel.

Case: Commonwealth of Virginia v. Matthew Dowdy

Summary: The prosecutor conducts a direct examination of a


police fingerprint examiner, who testifies to the standard opinion of fingerprint examiners
that all fingerprints are unique and that a fingerprint examiner can give a conclusive
opinion as to a match if, in his or her expert opinion, there are enough points of
comparison to declare a match. The expert is qualified, and, despite a pre-trial motion
attacking the reliability of the science of conclusive fingerprint matches, is allowed to
give an opinion. He is cross examined by defense counsel Jon Sheldon about the
assumptions inherent in fingerprint examination. While there is a substantial literature
arguing that conclusive fingerprint matches are wholly unscientific, such testimony is so
historically accepted it is generally admissible.

References:

http://blog.seakexperts.com/50-sample-deposition-questions-experts-witnesses/

http://blog.seakexperts.com/how-to-prepare-your-expert-witness-for-cross-examination/

http://www.clpex.com/Articles/Daubert/DefenseChallengeToFingerprints.pdf.pdf

http://defensewiki.ibj.org/index.php/Sample_Cross-Examination_Transcripts#Cross-
Examination_of_Fingerprint_Expert