Cross

You drove tractor trailers throughout your career, correct?

It is true that you have no memory of personally transporting industrial metals in

ingot form

You were employed by cam tran between 1989-1992, correct?

and you drove tractor trailers on public roadway while employed to cam tran?
Correct?

And you did not have a commercial driving license when you drove these tractor
trailers while employed at cam tran?

Today, it is unlawful to drive tractor trailers w/o a commercial driving license,

correct?

The last time you drove tractor-trailers was at cam tran in 1991, correct?

so the last time you drove tractor trailers you did not possess a commercial
driving license?

Do you have any evidence that the bundles of zing ingots that were loaded and
secured by Laredo, that there were a lateral or side-to-side load shift up and over
the two-by-fours on both sides of that load

You don’t know if the banding holding the zing ingots broke, or if the zing ingots
came out from the banding without them breaking, correct

The last time you drove a tractor-trailer was sometime in the 90s, 1991, correct?

that was over 20 years ago, correct?

So since 1991 and the present time of this accident on December of 09, you did
not possess a commercial driver’s license, correct?

You agree that the assessment of whether a particular load meets or does not
meet a particular g-force required for deceleration, is an engineering issue,
correct?

g-force – and you are not an eningeeer, correct?

You have not done an actual g-force caulculation under the facts of this case,
correct?

Have you seen the Joey Parker report concerning this accident?

And so you are aware that his opinion is that it’s indeterminate of whether the g-
froce is involved in this event, did or did not exceed .8 g forces ?

Ability to calculate g-forces having taking math in high school

It is true that you have never been permitted in a court of law to testify about a
particular g-force in a load shift or loss of cargo case?
Never worked for the federal motor carrier safety administration yourself,
correct?

You’ve never designed blocking, bracing, or secure procedures for metal ingots
like those in this accident, correct?

You are not aware of an industry stand among loading and securing zinc ingots
as of 2008, correct?

And, in your assessment of this case, knowing of such a standard would useful
information, correct?

Are you aware that Laredo Moving & Storage have testified that they have always
blocked and braced zinc bundles in the same was as done in this accident?

And you have no evidence that Mr. Gates did not

You don’t know the timing of the sequence of events in this accident, correct?

And thus you don’t know whether Mr. Gates maintained an 8-to-15 second time
distance between himself and the previous vehicle, correct?

You are not an expert in time perception and stopping distances, correct?

Is that a regulation opinion or is that a reconstruction opinion? Are you an

accident reconstruction?

And you have no evidence that the blocking and bracing installed by Laredo
Moving & Storage separated from the floor in Mr. Gate’s Trailer, correct?

Head on Attacks on Credibility

ð      Isn’t it a fact that your professional license was suspended in 2014 in the State of
Florida?
ð      You were convicted of perjury in 2002, weren’t you?
ð      You were censured in 2013 by your professional organization for giving misleading
expert testimony, weren’t you?
ð      You have lied many times in your life, haven’t you?
ð      Are you the same [name of expert] whose expert opinion was found to be “wholly
unreliable” by US District Judge Smith of New York?
 
Learned Treatises
ð      Do you consider [such and such source] to be authoritative?
ð      Do you agree or disagree with the following statement from [such and such
source]?
 
Investigation/Research
ð      You didn’t have all the time you needed to do a proper job in this case, did you?
ð      You never reviewed [such and such document], did you?
ð      You never visited the accident scene, did you?
ð      You never read [so and so’s] deposition, did you?
ð      You never personally did [such and such], did you?
ð      You never were provided with [such and such document], were you?
ð      You never even asked to do [such and such], did you?
ð      There are bugs in the computer program you used, aren’t there?
ð      Your opinion is based on a number of assumptions, isn’t it?
ð      You cherry picked only the supportive studies, didn’t you?
ð      You intentionally destroyed the notes you took in this case, didn’t you?
 
Testing
ð      There were other tests you could have performed, weren’t there?
ð      Is [such and such] one of the tests you could have performed?
ð      You never performed [such and such test], did you?
 
Hired Gun/Professional Witness
ð      You are being paid $500 an hour to be here today, aren’t you?
ð      You are making over $200,000 a year serving as an expert witness, aren’t you?
ð      You are here, because you are paid to be here, right?
ð      You actively seek out more expert witness assignments, don’t you?
ð      Is this a copy of your listing in SEAK’s National Directory of Expert Witnesses?
ð      You are listed with several expert witness referral services, aren’t you?
ð      You are a professional expert witness, aren’t you?
 
Bias
ð      100% of your expert witness work is on behalf of defendants, isn’t it?
ð      You have been retained by retaining counsel on dozens of other cases, haven’t
you?
ð      If plaintiff loses this case, isn’t it a fact that you are highly unlikely to collect all the
fees that you are owed?
ð      The defendant is a friend of yours, isn’t he?
ð      You own a large chunk of stock of the plaintiff’s company, don’t you?
ð      You would like the plaintiff to prevail, wouldn’t you?
ð      You live over 1,500 miles from here, don’t you?
ð      As a Democrat, you believe in wealth redistribution, don’t you?
ð      As a Republican, you believe in tort reform, don’t you?
ð      You state on your web page do you not, quote, “Call me today and I’ll help you win
your case” unquote, don’t you?
 
Impeachment
ð      Did you state at your deposition [such and such which is inconsistent with what you
are saying today]?
ð      Did you write in [article] [such and such which is inconsistent with what you are
saying today]?
ð      Did you write in [your report] [such and such which is inconsistent with what you
are saying today]?
 
Influence of Retaining Counsel
ð      You used those words in your report because retaining counsel asked you to use
them, isn’t that right?
ð      Counsel had you on a budget, didn’t he?
ð      You told counsel exactly what he wanted to hear, didn’t you?
ð      Retaining counsel helped you write your report, didn’t he?
 
Qualifications
ð      You don’t have [such and such credential] do you?
ð      You flunked your boards the first two times you took them, didn’t you?
ð      You are a jack of all trades, master of none, aren’t you?
ð      You have never published in your field, have you?
ð      You have never been invited to present on this topic, have you?
ð      You hold zero academic appointments, isn’t that correct?
ð      You were a mediocre student, weren’t you?
ð      You have never won any awards in your field, have you?
ð      You haven’t any real world experience in this field in the last ten years, do you?
ð      You are not really an expert in this area are you?
ð      Even you would agree that our expert witness [Ms. So and So] is more qualified
than you?
 
Methodology
ð      Your theory in this case was specifically developed for litigation purposes, wasn’t
it?
ð      Would you agree with me that your methodology is not generally accepted in the
field?
ð      You weren’t able to calculate a margin of error, were you?
ð      Your methodology has never been subjected to peer review and publication, has
it?
ð      You never built a prototype of your proposed alternative design, did you?
ð      You extrapolated, didn’t you?
ð      You never ruled out [such and such alternative explanation], did you?
ð      Your math is just plain wrong, isn’t it?
ð      You didn’t comply with [such and such professional standard] in this case, did you?
 
Opinions
ð      You are not 100% sure of your opinion, are you?
ð      You can’t provide any objective justification for that opinion, can you?
ð      You are just saying what retaining counsel is paying you to say, isn’t that true?
ð      You formed your opinion before you had all relevant information, didn’t you?
ð      Your opinion is exaggerated, isn’t it?
ð      Your opinion is the same in every case, isn’t it?
 
Your Report
ð      Are you aware of the 27 different mistakes in your report?
ð      Your reports from other cases are in many ways identical to your report in the
case, aren’t they?
ð      Retaining counsel asked you to use those words in your report, didn’t he?
ð      And you used those words despite not fully understanding what they mean, didn’t
you?
ð      You weren’t under oath when you wrote your report, were you?
ð      Am I correct in assuming that you have heard of the expression “it wasn’t
documented it wasn’t done?”

Initial Consultation

__ When you were first contacted

__ By whom you were contacted

__ When you were retained

__ What you were requested to do

Qualifications

__ Accuracy of CV

__ Misleading information on CV

__ Knowledge
__ Skill

__ Education/Degrees/Licenses or lack thereof

__ Training

__ Extensive areas of expertise listed in CV, suggesting expert is expert in everything

__ Self serving characterizations in CV

__ Memberships in societies

__ Awards

__ Practical experience

__ Recentness of experience

__ Relevancy of experience

__ Credibility

__ Marketing activities

__ Relationship to retaining party or attorney

__ Affiliation with an insurance company

__ Conversations with retaining attorney

__ Indirect monetary interest

__ Prior testimony

__ Professional presentations

__ Professional and personal writings

__ Professional errors or miscues by expert

__ Information on web page

Opinions

__ Documents and pleadings reviewed

__ Validity of underlying facts

__ Validity of underlying assumptions

__ Conflicts with opinions of other experts

__ Notes on documents

__ Information expert failed to review

__ Time spent forming opinion

__ Sources of information

__ Reports of other experts reviewed

__ Your opinion’s foundation

__ Reliance on tests not personally performed

__ Reliance on other experts’ records

__ Reliance on self-reported history

__ Omitted facts

__ When you formed your opinions

__ Opinions you will be offering

__ Opinions you will not be offering

__ Prior contrary opinions

Fees and Billing

__ Hourly rate
__ Amount billed to date

__ Amount anticipate billing

__ Amount paid in prior cases by client

Forensic Work

__ Percentage of your time spent on forensic work

__ Amount for plaintiffs

__ Amount for defendants

__ Percentage of your total income derived from forensic work

__ Consulting work where not retained to testify

__ Marketing activity, including web pages

Bias

__ Impartiality

__ Inflexibility

__ Personal/social relationship with party/attorney

__ Professional witness

__ Advocate

__ Fees and compensation

__ Direct or indirect financial interest in the case

Reports

__ Dates of reports

__ Oral vs. written

__ Revisions

__ Information in report

__ Inaccuracy in reports

__ Preliminary vs. final

__ Additions, alterations, corrections

__ Prior drafts

Tests Performed

__ When, where, at whose request

__ Results

__ Equipment used

__ Similarity of conditions

__ Photos, videos, or sketches taken

__ Tests not performed

__ Accuracy of calculations, tests

Visit to Accident Scene

__ When and at whose request

__ Similarity of conditions

__ What was done during visit

Skeletons in Closet

__ Professional discipline

__ Loss of job
__ Failing certification exams

__ Criminal convictions

__ Suspension/revocation of licenses

__ Testimony rejected by other courts or administrative agencies

__ Findings of being not qualified to testify

__ Prior professional or testifying mistakes

Subpoenas

__ Fully complied with subpoena

__ Removed documents from your file

Learned Treatises

__ Which texts, treatises, and articles are authoritative

__ Contrary statements in treatises

Prior Testimony

__ One-sidedness

__ Inconsistencies (impeachment with prior testimony)

Legal Standards

__ Degree of probability required

__ Standards of practice

__ Pertinent statutes, rules, regulations, and codes

Daubert Issues

__ Has your technique or theory been tested?

__ Has your technique or theory been subject to peer review and publication?

__ The known or potential rate of error of the technique or theory

__ The existence of standards and controls

__ The degree to which the technique or theory has been generally accepted by the
scientific community

__ Theory developed “for litigation only”

§3:62 All Parties: Comparative Fault

Liability

 Uncontrolled intersection
 First vehicle in the intersection has the right-of-way
 If both vehicles enter the intersection at or near the same time, vehicle on the right has
the right-of-way
 No traffic control devises to govern drivers
 Familiarity with intersection
 Obstruction to visibility across “critical corner”

Speed

 Approaching speed
 Change of speed
 Distance traveled during recognition of danger and reaction time
 Distance required to skid to a stop
 Distance required to slow or swerve

Lookout

 Duty to keep
 Duty to avoid collision
 Recognition of limited visibility across “critical corner”
 Sight distances at various distances from intersection
 Photographs of sight distances
§3:63 Plaintiff re: Injuries
 Causation
 Released from emergency room
 No overnight hospital stay
 Lack of treatment by primary care physician
 Relatively short period of treatment by orthopedic specialist
 Refusal of surgery
 Symptoms from prior injury existing at time of accident
Injury

 Lack of objective signs of injury at emergency room

 Previous MRI showing injury to same part of body
 Incapacitation or lack thereof of plaintiff
 Description of nature and extent of prior injury
 Records of prior treatment
 Time off from work

Treatment

 None at emergency room

 None with primary care physician
 Limited with specialist
 Chiropractic only
 Refusal of surgery
 Time between last treatment and trial

Prior claim

 Description of injury claimed

 Extent of injury claimed
 Amount of money claimed
 Amount of settlement
 Same attorney handling prior claim
§3:64 Accident Reconstruction Expert
Qualifications

 Education
 Training
 Employment history
 Experience

Bias

 Working relationship with attorney

 Percentage of cases for plaintiff v. defendant
 Amount billed for services
 Retained by plaintiff; paid by plaintiff
 All case information provided by plaintiff

Visibility

 Obstruction on “critical corner”

 Photographs of intersection and sight distances
 Measurements taken at scene
 Sight distances
 Weather conditions

Reconstruction of accident

 Direction of travel of vehicles

 Speed of vehicles
 Determination of which vehicle entered intersection first
  Calculations of stopping distances
 Recognition of danger
 Reaction time
 Skidding distance
 Grade
 Road surface type
 Road surface condition
 Test skids
 Time between accident and reconstruction
§3:65 Eyewitnesses
Bias

 Relationship with the parties

 Age
 Sex
 Race

Observations

 What witness claims to have seen

 Inconsistencies with other evidence
 Use of photographs
 Use of measurements
 Police report—listed as a witness; statement given at scene
 Prior statements
 Deposition testimony

Opportunity to observe

 Location of witness
 Obstructions to line of sight
 Length of time to observe
 Eyesight—glasses
 Lighting at scene
 Weather
 Distractions—kids in car; pedestrians
§3:66 Defendant’s Medical Expert
Qualifications

 Only sees patients two days per week

 Has not performed surgery for five years

Bias

 Relationship with defense counsel

 Number of cases with defense counsel
 Consultation with other defense counsel
 Financial reward for review of cases
 Earns more from consulting than from seeing patients
 Has never testified on behalf of an injured party

Basis for opinions

  Has not examined plaintiff
 Has not taken a history from the plaintiff
 MRI before the accident revealed bulging disc
 No objective evidence that disc herniation was present before accident
 MRI after accident revealed herniation
 A minimal herniation is still a rupture of the wall of the disc
 It is more probable that a twisting motion caused the herniation
 When he was performing surgery, he operated on herniated discs
Q: Mr. Witness, let us see if there are some things we can agree on. Q: You are the defendant in this
case, true? Q: You were driving a 1997 Mercedes Benz on June 4, 1998, at 4:00, correct? Q: At that time
you were traveling on Fifth Avenue, right? Q: You were involved in an accident with my client, Mrs.
Brown, true? Q: And you would admit that the front of your vehicle struck the rear of Mrs. Brown's
vehicle? If the witness is a bad person and you have the impeachment ammunition to prove it, you
might consider drawing the battle lines for the jury right from the start. For example, in a case where the
plaintiff has testified on direct that he had never injured his back before, but defense counsel has
depositions from a prior lawsuit wherein the witness testified about the horrible back pain from that
case, counsel might consider starting dramatically, by setting up the witness and then knocking him
down as follows: Q: Mr. Plaintiff, you've testified to a great many things today, and not all of them were
true? Q: You testified on direct that you never had back pain before your accident of June 4, 1998,
correct? Q: And if you had hurt your back before, and were actually hospitalized for that injury, that is
not something you would forget, true? Q: Sir, isn't it true that you were in another car accident on Jan.
2, 1993? Q: The police came to the scene of that accident? Q: An ambulance came too, correct? Q: You
complained of back pain, true? Q: You were taken to the hospital, right? Q: You were placed in traction
for a week, correct? Q: And you even brought a lawsuit for that back injury, correct? Q: Just like the
lawsuit brought before this jury, right? Q: You'd agree, that you didn't tell this jury about that prior
injury, true? The body of the cross should contain the necessary facts needed to prove your case. The
ending should be as dramatic, if not more dramatic, than the beginning. Toward that end, it is always
better to save two high points for the end in case one turns out not to meet expectations. Use of
Leading Questions The trial attorney should always ask leading questions on cross. Never ask non-
leading open-ended questions unless they are low-risk questions to which you either know the answer
or the answer cannot hurt you. A leading question, by definition, is one that contains the answer within
the question. It is also a question that suggests the answer. A leading question can also be defined as
one that calls for a yes or no answer. Here are some examples, all o