Avoid Tit for Tat When Confronting Expert Witnesses

Guest Post by “Hamilton Burger”

Every trial lawyer faces that sharp chill in the middle of the night, when your mind refuses to let go of your upcoming trial — and you realize that your opponent has an expert witness who is going to crush your case.

You may be a defense lawyer who has to prepare a trial on a shoestring budget.

You may be caught by the court’s disclosure deadlines; failure to answer discovery; or other procedural snafus.

My recommendation is not to worry, just get ready.  One strategy for winning against your opponent’s expert witness is to prepare one pearl of a question, or subject matter for a series of questions, that will get the expert to agree with you in front of the jury.  Once you get that expert to agree with you on a point, thank the expert, then sit down.  You have something to argue to the jury later.  This strategy does not suggest that you do not challenge the expert based upon your unique facts and case.  Of course, the level of attack against an expert witness must rely upon what you have in your wheelhouse to pitch to the jury.

I prefer, when the case allows, to avoid direct confrontation with the expert.  I rather pick away at the weak points, then get an agreement from the expert,  and sit down. I wait to challenge the expert at a point in the case when the expert cannot answer back — or be rehabilitated by your opponent — during the closing statement. That is when I mercilessly hammer away at the expert, describing to the jury why the expert’s opinion is deficient, or failed to do his/her homework. I often use the reports or documents that the expert admittedly did not review in preparing for his/her testimony.

And I remind the jury that the expert agreed with me, “…and remember when expert X agreed with me on this point….”

To read Hamilton Burger on the “Jury Trial Tax,” please click here.