Expert Cross-Examination: Creating Maximum Mileage From an Expert's Mistakes
"Effectively cross-examining an expert witness requires more than just identifying errors," write Ben B. Rubinowitz and Evan Torgan.
August 20, 2024 at 12:00 PM
8 minute read
Cross-examining an expert witness presents one of the most significant challenges an attorney faces at trial. Experts often come to court with years of specialized experience and substantial time in the courtroom—sometimes even more than the examining attorney. Despite this, the attorney usually invests significantly more time scrutinizing the case than the expert does. This thorough preparation provides the attorney with a crucial advantage: the ability to identify and exploit flaws in the expert's analysis or report. When leveraged effectively, even minor mistakes can become powerful tools to undermine the expert's credibility and reveal shortcomings in the expert's diligence and thoroughness in rendering an opinion.
Consider the following scenario: A train collides with a car at a grade crossing. The car's driver, diverted from a major highway due to an accident, finds herself on an unfamiliar, dark road. She stops near the railroad tracks and only realizes her position once the crossbuck arm descends onto her car. As a train approaches, the engineer, familiar with his route, spots a reflection at the crossing from about 1200 feet away. Though he suspects it might be a car, he does not immediately apply the brakes. The driver exits her vehicle, touches the crossbuck arm, re-enters her car, and attempts to pull forward. The car and train collide, resulting in the driver's death, the death of five train passengers, and injuries to numerous others. During the trial, the plaintiffs argue that the train engineer was negligent for failing to slow down, while the defense blames the driver's lack of caution.
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