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Effective Strategies in Challenging the Opposing Expert Witness

When hiring an expert witness, the lawyer knows that the other counsel may also have an expert witness to counter his or her expert’s claims. Even with scientific data backing the opinion of the professional, there are other methods that may reach a different conclusion.

Because of this, it is important to know what to do in these situations, how to handle the other expert witness used and when it’s necessary to discredit him or her. There are a number of strategies that could be employed, but the best ones to use often depend on the circumstances and the specific situation.

Cross examining the opposing expert witness may require assistance from the hired expert so that the lawyer is aware of what information is needed, which questions are best asked and how to ensure the proper answers are obtained. A strong relationship between the lawyer and his or her professional is crucial in these situations, as only through communication and instruction is the lawyer able to fully engage the opposing expert and understand what is said and how to counter an opposing opinion. However, even with this possibility, there are other strategies
that may be more effective. It is vital to know what these are so that they may be used correctly and the legal representative and client are aware of what to do next.

Steps to Take

When there is the possibility that an expert witness may be used by opposing counsel, there are several steps that should be taken to challenge his or her testimony. It is vital that preparation is completed before the professional ever enters the court room. Through carefully selected questions it may be possible to limit the scope of the expert’s testimony. Objections during the trial and even voir dire hearings could lead a lawyer to disqualify or challenge the testimony of the professional. It is vital to gather all relevant materials and evidence in order to cross examine the individual properly.

The lawyer should connect relevant case analysis to the experience of the witness used by opposing counsel. If the report he or she supplies may be opposed or challenged properly, it may be possible to introduce evidence and proof that his or her findings may be invalid or irrelevant. The foundation of the findings of the expert should be identified so that it is possible to determine how he or she reached the conclusion and formed his or her opinion on the incident. If the professional may be disqualified as an expert during voir dire, it may be possible to remove the testimony and conclusion entirely.

Inquiry and the Challenge

For the lawyer or other expert witness to challenge the expert witness’s testimony, certain lines of inquiry should be posed such as relevant details, constructive facts and where the evidence agrees with his or her details. Qualifications, motivations and standard testing should all be questioned as with any other professional hired for a case. This could mean that a Daubert challenge may be issued to ensure the testimony and methods used to determine a conclusion are relevant to the subject or field in the claim and that the information is reliable. If processes performed by the expert are not standard or reproducible, he or she may be removed as an expert witness. This may be up to the judge to decide.

The foundation for the conclusion and the basis for his or her opinion should be challenged along with any other opinions about evidence and connection to anyone in the case such as the defendant or plaintiff. If the credentials of the expert are credible, other lines of inquiry should be considered such as the impartiality of the witness and his or her omissions of certain areas of evidence and methods. In certain instances, it may be possible to use the opinion as favorable to the case of the lawyer client instead of for the opposing counsel. It is important to listen to the information provided by the expert witness before considering a route of attack or challenge.

Prevention of Expert Testimony

The best way to outmaneuver the opposing counsel is to remove the expert through a direct challenge of his or her credentials, credibility or through a Daubert challenge. If the expert is removed from the case, this means that he or she was not qualified enough to remain and provide assistance. However, if prevention is not possible, an expert with a better stance, charisma or attention to detail may be the best move forward.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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