Anatomy of a Civil Trial
The Expert Report In many personal injury cases, the plaintiff lawyer will
receive an expert report produced by one or more of the defendant’s experts. Of course, at least some of the time that report is in reality drafted by the defense attorney. As a result, sometimes the opinions that are listed in the expert report turn out not to be the actual opinions that are held by the expert. Tis can prove to be a fruitful source of material for cross examination. If you have a case where there is no discovery deposition
and the expert report is all you have available to you prior to trial, you should create a very detailed outline that lists each opinion in the report along with the specific facts the expert relied upon in reaching those opinions. If and when the expert deviates factually or opinion–wise from the report, you have the opportunity to use those inconsistencies in cross-examination. Also be on the lookout for opinions that are offered in trial testimony that were not contained in the expert report. Finally, be on guard if you receive a report from a defense expert that contains very general opinions and fudges on the facts underlying those opinions. Te likelihood is that the expert intends to testify to very specific opinions at trial that only relate generally to the opinions offered in
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The Discovery Deposition In a case pending in the Circuit Court, a plaintiff lawyer’s
cross-examination of the defense expert always begins at the discovery deposition. At that deposition, the plaintiff lawyer has to make certain that she asks about all of the expert’s opinions, and that she asks the expert to explain in detail the basis for each opinion. Never, ever allow a defense expert to tell you that he has an opinion without pinning him down to the specific facts of the case upon which he bases that opinion. A skilled defense lawyer will prepare his expert to be as general as possible so as to leave himself wiggle room for additional expert theories at trial. Make sure that you ask for, review and mark as an exhibit any notes, reports, scribbles, diagrams or notations. Pay attention to what the expert doesn't tell you in
deposition. If the expert has been designated to testify on issues of causation and damages, and when you depose him he only testifies about damages, make certain that you ask him what his opinions are regarding causation. If he tells you that he doesn't have any opinions regarding causation, follow up with him by referring to his expert designation. Tat does one of two things. Either it will eliminate areas of inquiry that you will have to worry about on cross, or it will alert you to the fact that he is trying to hide some of his opinions so that he can whack you with them at trial. Make sure that you spend time before the deposition
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looking at the expert’s resume or CV. If the expert has any articles or other publications, make sure you ask the expert about them, specifically about whether or not his publications are specifically germane to the issues in your case. Look also at his training and education. If you are not certain about whether the expert is qualified to offer the opinions that the defense has offered him for, make certain that you have explored with him all of his qualifications so that you are not surprised at trial. Ask the expert about his experience as an expert witness.
How much time does he spend reviewing documents or performing testing as a part of his expert activities? It is important to know how frequently he reviews cases on behalf of lawyers and whether they go to court or not. Make sure that you ask the witness whether or not he has been an expert in the federal courts. If so, request a copy of the list of expert testimony that is required under the federal rules. Be sure that you find out what percentage of his expert work is on behalf of defendants as opposed to plaintiffs. Ask about the locality breakdown. In other words, if an expert whom you know primarily testifies on behalf of defendants tells you that 25% of his reviews
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