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Most Common Attacks on an Expert Witness During Cross Examination?


Initially, opposing attorneys might attack your qualifications and credentials. Perhaps your degrees were not directly on point to the case or you did not even complete a degree program. Maybe your background in the industry was not on target. Are your expertise or degrees out of date? What have you done recently that is directly related to the particular case about which you are opining? Are there time gaps in your professional work background? What were you doing during those gaps? Are there any discrepancies between your CV and the credentials listed on your business website or your university's website?

Prepare reasonable answers to any questions you can think of about your qualifications and credentials. Assume that the opposing side will see or discover opportunities for attack here. Don't ignore any weakness in your accomplishments and credentials. Discuss such a weakness in advance with your retaining lawyer. He may well want to consider addressing the weakness in some fashion to minimize it during direct testimony.

Next, you will almost always be attacked for some form of bias. Perhaps you always work for the defense, or always work for the plaintiff. Have you worked frequently for this particular law firm that hired you? Perhaps you have written something that expresses a clear-cut advocacy for a cause that may be connected to this case. Have you recently written something silly but on point and now public on your Facebook, Linkedin, or Twitter account? Think ahead to what possible opportunities may exist for attempting to convince the jury that your testimony is slanted. Prepare answers to those efforts that may paint you as a biased expert.

Next, attorneys will attempt to call into question the factual basis of your complete investigation. They may claim that your facts were inadequate, and even seek your support by asking questions that suggest other steps that you may have missed or other procedures that you may have chosen not to include. Stay confident of your work, but prepare to answer questions that suggest inadequacy. Be prepared to describe what things you chose not to do and why. Also be prepared to express confidently why the scope of your work was enough to lead you to your conclusions.

Remember that you do not need absolute opinions. You only need to express your best opinion, based on the most probable scenario and to a reasonable degree of scientific or medical certainty.

good cross examiners have a set of reliable questions that attack the adequacy of expert witness investigations. When asked during cross examination, it will be devastating if any of them hits home and can demonstrate either oversights or weaknesses in your work effort. I discussed several of these types of questions in Lesson 9. If you do not recall those, you can review them in the section of Lesson 9 entitled "questions meant to attack the factual basis of your testimony."

You may fall prey to such questions because your lawyer or his client told you it was unnecessary to do so-and-so or that they did not want to spend the money for you to do such-and-such. You might not have been permitted to run additional tests. You might not have been allowed to complete certain site reviews. You might not have been authorized to create reconstructions of certain events.

You may have the best intentions but from time to time, you may be subjected to limitations that restrict what you can do or say. You will have to discuss that with your lawyer. You may need to prepare explanations. You might dismiss the omission as unimportant, or as something that you chose not to do because it was not necessary. If any of those activities that you did not do were required, then you may no longer be able to express the opinion you expressed.

Judd Robbins has been an internationally recognized expert witness since 1986 in the US and in the UK. He has testified in State and Federal courts and has been featured as a testifying computer forensics expert on MSNBC, Court TV, and Tech TV. His cases range widely from intellectual property infringement to murder. He has been a best-selling author of more than 30 training and computer books and has created more than 25 training DVDs and videos. In 2010, his book "Expert Witness Training" was published by Presentation Dynamics. Robbins has advanced degrees from UC Berkeley and the University of Michigan, has been an Information Systems manager and an Education Systems manager, and consults in both computer and legal issues. Learn more about Mr. Robbins and his Expert Witness Training materials at

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