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verdicts is that in general they understand that experts get paid to testify, and they generally don't begrudge someone from making decent money as an expert witness. On more than one occasion, a juror has told me that they thought a particular expert witness must be really good because he made so much money testifying. I only relay that experience so that you don't end up believing that crossing on financials is a panacea.

Bias Bias is a tough thing to prove. I mean, sure, the expert

always testifies on behalf of defendants. He has never testified on behalf of a plaintiff whether in Maryland or anywhere else. Unfortunately, when you press him on it at trial his response is inevitably going to be that the only cases that he ever actually testifies in are those that he believes are defensible. He'll tell you that he reviews lots of cases for defendants and in a great number of them tells the defense lawyers that they need to settle the cases. Tere's no way for you to verify this so he can say anything he wants. Having said that, there are circumstances where attacking

a defense expert on bias has merit. If the expert works with the defendant, or is friends with the defendant (or the defense lawyer), or otherwise has a business relationship with the defendant, bias is a legitimate and potentially powerful attack.

32 Trial Reporter / Spring 2012

Previous Testimony It takes a lot of legwork to find previous testimony of an

expert witness that is so closely related to the issues in your case that you can use it to impeach the opinions of that expert. However, it is worth the effort. One of the best parts of utilizing previous testimony is that it comes as a complete shock to both the expert and the lawyer. Some of the best cross examinations I have ever seen have utilized previous testimony, and made even the smoothest defense expert look foolish.

Board Issues/Competence I'll be brief. Tere is at least one well-known defense

surgical expert who regularly testifies in medical negligence cases who has a history that includes two instances of operating on the wrong body part. Unless the expert for the defendant is that guy, or someone else with an equally gruesome background, you're not likely to make much headway arguing that a well-credentialed expert is not competent to provide expert testimony.

Last Thoughts I hope that this brief article has helped you to prepare

yourself so that you can maximize your opportunities for winning cross-examination of defense expert witnesses. I will leave you with one last piece of advice that I think has helped me through the years.

The Rule of Three When you are preparing for cross-examination, focus

in on three salient weaknesses in the expert’s anticipated testimony. If you get a concession from the expert on one, you've done well. If you score points on two, your cross has exceeded expectations. If you win all three, you will have done major damage to the defendant's case. Once you have covered those points, resist the temptation to keep going. Sit down. 

Biography Gary E. Dumer, Jr. is a founding member of Dumer,

Harrison & Barnes, P.A., where he focuses his practice on the representation of plaintiffs in medical malpractice actions. Mr. Dumer formerly was a partner in the law firm of Cornblatt, Bennett, Penhallegon & Roberson, P.A., where he represented defendants in medical negligence cases. He graduated summa cum laude from the University of Baltimore School of Law in 1994. He served as an editor of the University of Baltimore Law Review and is a member of the Heuisler Honor Society. Mr. Dumer has practiced in all Maryland trial and appellate courts and in the United States District Court for the District of Maryland.

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