Expert, Smeckpert

It seems that in all civil cases the outcome is dependent upon who has the “best” expert in the bunch. I understand that in a complex chemical patent infringement case, you need some expert to explain the significance of the hydrogen bonding with the oxygen to form molecules of a substance known as water, but I often wonder how you would cross examine this expert.

One of the many gifts I was given in my life is the gift of the Trial Lawyers College. We learned a soft cross technique there and it might come in handy for those who have to cross someone who arguably knows a hell of a lot more than me on any one subject. I mean, I can’t learn as much as the expert knows in my preparation for trial as he or she knows from a lifetime of experience, teaching or writing.

So I start with the premise that I must learn as much as I can about the subject matter at heart. Usually, I read my reference source material and study up on what I can. I then go to the other experts in the field, if they will talk with me and find out what I can from them.

Next, I go to the lawyer list service and ask if anyone knows of this expert on this topic and if they might have any transcripts of his or her testimony. A lot of times, I get no results from this search, so I am back to the fact that I know little or nothing about the topic the expert is gonna testify about.

One thing I’ve learned is you can’t match wits or argue with someone who knows more than you do. This small piece of advice has served me well in my legal career. I’m involved in a case where there is an expert in Phrenology and I’m afraid I don’t know a damn thing about it. (For those of you who don’t know what phrenology is,,, well, it’s bonehead medicine). Now as I understand it, a phrenologist literally feels the head of the person he or she examines and can determine what character traits or profession would best suit this individual. At the turn of the century,,, this type of expert was widely acknowledged and given the highest degree of respect. Yesterday’s phrenologist might be today’s opposing expert.

So we all know this “expert” is fulla crap,, but would this help you in front of a jury? I mean, what if you slice and dice this “expert” up so that he or she looks totally stupid in front of the jury? Wouldn’t you feel just great about that? It would make you look like the smartest “lawyer” in the world,, what with you literally destroying this fella and making him or her look like a fool. I suspect you think the jury will cherish your every word and that you might even think you walk on water. I mean you put this idiot in place,, what with your great cross examination.

Now, I’m sure you think you’ve won the case haven’t you? And, yet,, sometimes you lose the case? Sound familiar? So how do you cross this fella and not lose the case?

Well, it all begins with the client’s story of the case. It all centers around the personal emotions and feelings generated when the client comes into your office and begins work on his or her case. You must know your client’s story and your own experience to relate to it. Plain and simple, that’s how it’s done.

So what about the soft cross technique and any questions you might ask this fella?

I’ll take that topic up later in another post and maybe outline the general questions,,, until then, have a nice day,, I’m off to Houston.


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