Qualifying and Cross examination of Experts How to Qualify an Expert Witness The Federal Rules of Evidence state, "If

scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." In order for someone to properly qualify as an expert witness, he must accurately and adequately answer a specific set of foundational questions to establish his specialty. Once qualified, he may offer testimony and opinions based on his specific training, knowledge and expertise. Difficulty: Challenging Instructions 1 Qualify the witness's knowledge: Ask questions such as, "What is your current profession?", "What is your education and training?", "How long have you been practicing this specialty?", "Do you have any publications on the topic?" and "What specifically does your job entail?" 2 Qualify the witness's familiarity with the case at hand: Ask questions such as, "Are you familiar with the case at hand?", "How have you obtained information for this case?", "What investigations, labs, tests or interviews were conducted?" and "What is your basic understanding of the applicable facts for your investigation?"

QUALIFYING QUESTIONS FOR THE EXPERT WITNESS (SAMPLE EXPERT WITNESS VOIR DIRE) 1. Name. 2. Occupation. 3. Place of employment. 4. Present title. 5. Position currently held. 6. Describe briefly the subject matter of your specialty. 7. Specializations within that field. 8. What academic degrees are held and from where and when obtained. 9. Specialized degrees and training. 10. Licensing in field, and in which state(s).

11. Length of time licensed. 12. Length of time practicing in this field. 13. Board certified as a specialist in this field. 14. Length of time certified as a specialist. 15. Positions held since completion of formal education, and length of time in each position. 16. Duties and function of current position. 17. Length of time at current position. 18. Specific employment, duties, and experiences (optional). 19. Whether conducted personal examination or testing of (subject matter/ person/instrumentality). 20. Number of these tests or examinations conducted by you and when and where were they conducted. 21. Teaching or lecturing by you in your field. 22. When and where your lecture or teach. 23. Publications by you in this field and titles. 24. Membership in professional societies/associations/organizations, and special positions in them. 25. Requirements for membership and advancement within each of these organizations. 26. Honors, acknowledgments, and awards received by you in your field. 27. Number of times testimony has been given in court as an expert witness in this field. 28. Availability for consulting to any party, state agencies, law enforcement agencies, defense attorneys. 29. Put curriculum vitae or resume into evidence. 30. Your Honor, pursuant to (applicable rule on expert witness), I am tendering (name) as a qualified expert witness in the field of_____________________.

IV. DEPOSING YOUR OPPONENT'S EXPERT Deposing your opponent's expert can be one of the most important parts of your trial preparation. If you follow the method described below, it will also be one of the most effective ones. 1. Before the Deposition. Before you can take the deposition of your opponent's expert you must find out who he is. Your local rules will tell you how to do this.

When you notice the other side's deposition, you should include a document request. In addition to the discoverable reports and writings that were requested in the demand for a witness exchange, you should ask for at least the following: 1. All documents reflecting or relating to any communication between the expert and opposing counsel, including such things as engagement letters. 2. All documents reflecting any communication relating to the engagement, including any communications with witnesses. 3. All documents reflecting or relating to any preliminary opinions or conclusions. 4. All documents consulted or relied upon by the expert in connection with the engagement including those he consulted or relied upon in forming his opinions. 5. All documents relating to his educational, employment, and professional history and any other documents reflecting or relating to his qualifications to testify. 6. Copies of all professional publications to which he has written or contributed. 7. All documents reflecting or relating to other cases in which he has testified as an expert, including any documents, including transcripts, that reflect the substance of his testimony, the terms of his engagement, the court in which the action was pending, or the outcome of the case. 8. All other documents relating to the engagement, the opinions he expects to give, or the opinions he was asked to consider giving. Before the deposition, you should learn as much as you can about your opponent's expert, his area of expertise, and the potential weak spots in his opinions. Your own expert is one source of such information but you should not limit yourself to any one source. There are two schools of thought about whether it is better to try to take the deposition of your opponent's expert before or after that of your expert. If your expert goes last, your opponent will have had the benefit of seeing what a really good deposition of an expert looks like. He will also have a pretty good idea of your theories to help him prepare for his deposition of your expert. On the other hand, your expert will have the benefit of knowing what the other side's expert said and can avoid pitfalls and help you to develop lines of inquiry. In the deposition, your goals will be to exhaust the witness's qualifications, his preparations to opine, and his opinions. In addition, you will explore with him all the areas that you expect to cover with your own witness, get any admissions you can, and explore any possible sources of bias.

You exhaust the witness's qualifications by first getting a narrative description of all of the qualifications and experiences that the expert believes qualify him to give an opinion in your case. Look for differences between the facts of this case and situations with which the witness has had experience. You should end up with a list of characteristics of this case with which the witness is unfamiliar or inexperienced. You can then use these admissions to exclude the witness's testimony or attack his credibility at trial with questions like "Isn't it a fact that you've never treated even a single person for a broken leg where there was also extensive damage to the kneecap?" or "You've never appraised a regional shopping mall before, have you?" In addition, you should look for differences between the kind of opinion that the witness seeks to give at trial and the kind of opinion that the witness is required to form in his own work. For example, the branch manager of a stock brokerage firm who is being called to give an opinion about the suitability of an investment recommended by the defendant to the plaintiff may never be called upon to make investment recommendations in his daily work of supervising other brokers and office operations. The goal with this kind of questioning is to limit the areas of the witness's expertise to exclude some or all of the areas material to the case. As with all similar types of questioning, it is important to ask the closeout questions. For example, you should not leave the area of the witness's qualifications until you get an unequivocal "no" to a question like "Do you have any other qualifications or experiences that fit you to express an opinion in this case?" After you exhaust the witness's qualifications, you do the same thing with respect to the witness's preparation to render an opinion. You want to know everything the witness did and should not leave this area until you get a satisfactory answer to your closeout questions. Then, get specific about what was not done. Ask the witness whether it would have been helpful to have done specific additional items of preparation. Ask whether the results of the additional procedures might have changed his opinions in any respect. Find out why or why not. Then ask the witness open ended questions about what additional preparation or procedures might have been helpful to him. Find out the reasons why or why not. Find out why any admittedly valuable procedures were not done. Ask the closeout questions. Next you exhaust the witness's opinions. Find out all the opinions and conclusions he has reached or was asked to reach. Ask the closeout questions. For each opinion: 1. Find out all the facts upon which it is based. Find out the basis, if any, for those facts. Ask whether relevant alternative facts might result in a different conclusion. Find out why or why not. Ask the closeout questions. 2. Determine the witness's degree of confidence in each of his opinions in an attempt to distinguish between firmly held conclusions and mere guesswork or speculation. This works two ways:

a. If the witness admits that some of his opinions, conclusions, or assumptions are less than secure, his opinions will carry less weight. b. If the witness claims an improbable degree of confidence in his opinions, he may hurt his credibility. Finally, ask the witness all the questions you will or might ask your own expert. His opinion on many matters may support your theories and will be far more convincing on these points than those of your own witness. For each answer that contradicts your own expert or theory: 1. Find out the precise nature of the disagreement. 2. Find out whether the contradictory opinions are based on different assumptions. If so, ask whether the expert's opinion would change if he accepted the same facts as your expert. Ask him what other changes in the facts might change his opinions. If there are no facts that could change his opinion, or he says that obviously material facts wouldn't affect his opinions, he won't be very credible. If he admits that certain facts would change his opinion, maybe you can prove those facts at trial and turn him, in effect, into your witness. 3. Find out whether there is more than one school of thought in the community of experts. If so, see if you can get the hostile expert to admit that there is a substantial body of thought that supports your position. During the course of completing the above lines of questioning, you should have gotten most of the useful admissions that could be obtained concerning the expert's expertise, preparation, opinions, and assumptions. In addition, try to get admissions concerning the expertise of your own experts and the reliability of any treatises, tests, or other sources of information upon which you intend to rely. Next, you should ask the witness about the documents. Start by asking how the documents he brought with him or provided through counsel were gathered or selected. Ask about each category of document you requested and ask whether the witness knows of any documents in the category that were not produced. Also ask pointed questions about more specific kinds of documents that fall into the categories and that were not produced but that you believe or suspect exist. Ask whether the witness reviewed any documents when he was preparing to testify, including personal notes, and make sure that you have copies of them. You should be aware that, while an argument can be made that many documents prepared by or reviewed by the witness are work product, cases in this area have held either that the designation of an expert to testify waives any work product or attorney-client privilege or that counsel's need to cross examine the expert on materials covered only by work product protection outweighs that protection. See, e.g., National Steel Products Co. v.

Sup. Court (1985) 164 Cal.App.3d 477, 485, 488, 210 Cal.Rptr. 535, 540, 542; County of Los Angeles v. Sup. Court (1990) 224 Cal.App.3d 1446, 1458, 274 Cal.Rptr. 712, 720. Finally, explore any possible sources of bias or interest. In particular, you should ask about the witness's relationship with the parties, with your opponent's counsel, and with the plaintiffs' or defendants' bar, and the terms of the witness's engagement and compensation. V. CROSS EXAMINING YOUR OPPONENT'S EXPERT AT TRIAL If you intend to try to prevent your opponent's expert from expressing an opinion, it may be better to do so by means of a motion in limine to try to avoid giving your opponent an excuse to present the witness's qualifications in exhausting detail and to avoid investing too much time before the jury in an effort that will probably fail. Assuming that the expert is allowed to testify, if your deposition was done properly, your cross examination will be easy, effective, and free of risk. Asking only questions that the witness has already answered in the deposition, you: 1. Bring out any limitations in the witness's qualifications and experience. 2. Elicit any limitations on the witness's confidence in his opinions and any unbelievable expressions of confidence. 3. Bring out any limitations on the preparation done and the additional work that the witness has admitted could have rendered his opinions more certain. 4. Elicit any damaging admissions concerning any issues in the case. 5. Elicit any assumptions that can be disproved or questioned. Alternatively, elicit the witness's assertions that no conceivable set of facts could have changed his opinions. 6. Elicit hypothetical opinions that support your theory. In the alternative, elicit the witness's assertion that his opinion would be unchanged even in a hypothetical case that obviously cries out for the opposite conclusion. 7. Bring out any admissions of the expert concerning the qualifications of your expert and the reliability of his sources, tests, and methods. 8. Save a good question for last. A good last question is not an argumentative or conclusory one that will draw a valid objection or give the witness a chance to get the last word. A good question is a question that substantially helps your case, that is put in precisely the same terms as in the deposition, that was answered unequivocally in your favor, and the answer to which cannot be changed now by the witness without massive damage to his credibility. If you get the same answer you got at the deposition, SIT DOWN! If you don't get the same

answer, remind the witness of the deposition, ask him whether he was under oath, ask him whether he was asked the previous question and gave the previous answer, and then sit down.