Anatomy of a Civil Trial
The Defense Expert at Trial
A Perspective from a Former Defense Lawyer
Gary E. Dumer, Jr. E
very red blooded plaintiff ’s lawyer loves a good cross-examination of a smarmy, know-it- all defense expert. After all, doing serious damage to a defense
expert at trial significantly increases the likelihood of a verdict in our client's favor. Plus, it's fun. Let's be honest, doing the direct examination is technical and nerve-racking. Cross makes us feel like lawyers, using the sharpness of our wits to disarm the defendant's top gun. Unfortunately, while there are a number of terrific plaintiff ’s lawyers who routinely cross effectively, many of us just aren't all that good at crossing defense experts. I know from experience. For the first 15 years of my career I defended doctors, hospitals and other healthcare providers in medical negligence cases and I watched as time and again plaintiff ’s lawyers missed opportunities to disarm the expert witnesses I brought to trial. To be honest, sometimes they failed because they weren't very good lawyers and just simply lacked the skill necessary to effectively cross a defense expert. In most cases though, the deficiency was not in the skill of the lawyer, but rather in their failure to understand the two essential principles of cross examination, the nature of your opponent and the details of the case. In this short article I hope to provide you with some new arrows to put in your quiver as you prepare for that next important cross examination of a defense expert at trial.
Understanding How the Other Side Thinks One thing that can make it difficult to effectively cross
examine a defense expert at trial is a failure to understand the way a defense lawyer structures his lineup of expert witnesses in the process of preparing his case. While you might think that a defense lawyer structures the expert testimony in his case in essentially the same way that the plaintiff lawyer structures her expert testimony, in many cases you would be wrong. A good
defense lawyer has a keen understanding that it is the plaintiff's obligation to meet the burden of proof. As a result, the defense lawyer will develop his expert testimony in such a way as to neutralize the experts identified by the plaintiff. He knows that he doesn't need to win the expert battle; he just needs to avoid losing it. How does he do this? Well, first the defense lawyer makes certain that he identifies every specialty of expert that is identified in the plaintiff's designation of expert witnesses. He will, at the very least, make certain that he covers the field of opinions he anticipates the plaintiff ’s experts will offer. Second, he will (if at all possible) identify witnesses who practice within the state. He does this because he understands that juries have a tendency to favor witnesses who are local. Tird, if the defense lawyer is able (and often he is) he will identify multiple experts in the specialties of the plaintiff ’s witnesses. Multiple experts in the same specialty present potential pitfalls for a plaintiff ’s lawyer and opportunities for the defense lawyer. If you are involved in a complex case where the defendant has multiple experts in the same specialty, you need to be aware of how defendants manage these experts in order to trump the opinions of your experts. Many plaintiff lawyers think that the defendant identifies
multiple experts in a single specialty as a means of testing or trying out the experts at deposition to determine which
Trial Reporter / Spring 2012 27
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