General Practice, Solo & Small Firm DivisionBest of ABA Sections
SPRING 1998 - VOLUME 2, NUMBER 1
Preparing to Destroy Any Expert Every Time
By Walter R. Lancaster
We’ve all heard the story of Achilles. When he was an infant, his mother dipped him into the River Styx, which made every part of his body invulnerable, except where her hand had grasped his heel. He then went on to be invincible, until he was killed when Paris shot him in the heel with a poisoned arrow. Achilles, as a semideity, was also the world’s first expert, and because of Achilles, every expert ever since has been born with his own unique Achilles’ heel. Your job, as a lawyer, is to find it.
The first problem is that because most people have never heard the full Achilles story, they get intimidated in the presence of experts. Some lawyers, it seems, are so convinced that a given expert is invulnerable that they don’t even try to attack him, but instead are content to hire their own experts to fight their battle in the courtroom.
Well, we now know that the idea that experts are invulnerable is a myth. To the contrary, experts are uniquely susceptible to good cross-examination. What I have learned, in part by trial and error, in part from the mentoring of some great trial lawyers, is that by following a few basic rules, you can find every expert’s Achilles’ heel, and thus destroy any expert, every time.
RULE 1: Become the master of your case. You must be intimately familiar with every fact, every document, every witness in the case. Admittedly, this rule may have some practical limitations. Due to the magnitude of some cases, you may have to rely on others to become the masters of their portion of the case. But remember that every time you do that, every time you add a layer between you and the facts, you are compromising this first principle. This is especially true when it comes to expert discovery, because this is one of the key ways to achieve a significant advantage over any expert. The more popular—or greedy—an expert is, the less time he will have to devote to your case. While the expert may know his field intimately, you should know the case in which he seeks to apply that field even more intimately. One of the most common mistakes that experts make is not being intimately familiar with the facts. Remember, jurors are less forgiving of experts than they are of lay witnesses. All you need to do is catch the expert in one significant mistake to cast doubt on all his opinions. If you can master the facts, you will have your first significant strategic advantage.
RULE 2: Know your prey. This requires research and study. One of your goals should be to know the expert as well as she knows herself. That means more than getting the expert’s self-serving curriculum vitae. Experts are creatures of public record. Know that record. Prior depositions and writings are the most likely source of useful information, but do not ignore the lesser known sources of information such as nonpublished reports, affidavits, articles or news pieces about the expert, academic records, and litigation involving the expert.
RULE 3: The only way to beat an expert is to be a better expert. Besides knowing the case, you also must learn that field of specialized knowledge that the expert wants to bring to bear. Difficult? Yes. Impossible? No. By reading voraciously in the field, by consulting your experts, you will become an expert in the field.
RULE 4: Advance preparation makes winners. Always get an advance copy of the expert’s file. As more and more jurisdictions limit the number of depositions and/or their length it becomes even more important that the litigator make every minute of cross-examination count. Getting the file in advance allows you to walk into the deposition with a plan, save the client money, and take a potential strategic advantage away from the expert. Most lawyers will agree to providing the file several days in advance of the deposition, provided that you agree to reciprocate with your experts. If a lawyer refuses, then issue a Rule 45 subpoena.
RULE 5: Cooperation is nice, subpoenas are better. Even if your opponent has agreed to voluntarily tender the expert’s file in advance of the deposition, you should always issue a subpoena. You want the expert under the court’s subpoena power, whether it comes to issues of production or conduct during a deposition. But be careful about what you ask for, because what is good for the goose is usually good for the gander.
RULE 6: Take the time you need to get it right. It’s no good amassing all of this information if you don’t put it to good use. You have to study it, work it, prepare a plan, and then execute that plan. Read through that file until you know it cold. How much time to prepare? Here, lawyer’s working on a contingency fee have a distinct advantage; they take as much time as they need to. But for lawyers billing by the hour, I can already hear the dissent. I’d love to be fully prepared, but my client will only pay for two hours of preparation time. Well, let me preach a little heresy. You and your client should have an understanding of the importance of expert discovery, and the amount of time necessary to prepare. In most cases, once the client understands what’s at stake, you will have no problem getting the time you need. But if you run into a situation where you need more time than the client will pay for, then you have to look yourself in the mirror and ask whether your desire to win is limited by whether or not the meter is running.
Rule 7: Don’t plan to ask, plan to attack. As Judge Bazelon once said, "Challenging an expert and questioning his expertise is the lifeblood of our legal system. . . . It is the only way a judge or jury can decide whom to trust." Accordingly, your plan should be to destroy the expert in the deposition. With very few exceptions, there is no reason to hold your bullets for trial. Most cases settle. The systematic destruction of your opponent’s experts will enhance the prospects of settlement on terms that favor your client. This, in turn, maximizes the client’s return on his or her investment in you. Accordingly, your deposition should be your trial cross-examination, with the added advantage that you get to take chances in a deposition that you would not want to take for the first time in front of a jury.
If you hurt the expert in the deposition, then expect him to change his opinions at trial. If this happens, move to preclude or strike these "new" opinions during a sidebar. If the judge lets the expert "flip," don’t panic, impeach. The flipping expert gives you the greatest gift of all, a concession, in front of the jury, that you know more than he does. It’s a great way to begin, and end, your cross on a high note.
An effective expert cross-examination can mean the difference between winning and losing a case for your client. No expert is immune to cross-examination. Whether it’s their fees, their bias, their lack of familiarity with the facts, or their faulty methodology, every expert has an Achilles heel. Through creativity, determination, and, above all else, hard work, you should be able to find it. Once you become adept at doing so, you will be able to destroy any expert, every time.
Walter R. Lancaster is a partner with the law firm of Kirkland & Ellis, in Chicago, Illinois.
This article is an abridged and edited version of one that originally appeared on page 46 in Litigation, Fall 1997 (24:1).