Part 4 – Know What You Are Looking For
In this 8-part blog series, we will explore tips for preparing an effective cross-examination of trucking safety experts.
Last week, we discussed the importance of preparing by learning all you can about the witness in advance. This week we discuss the importance of having a plan.
So now you have a banker’s box full of documents and pleadings and depositions on the Plaintiff’s safety expert. What are you looking for?
First, look and see if the expert’s opinions have ever been limited or stricken. If the Plaintiff’s expert does any work in federal court, chances are that their opinions have been challenged. If you find where their opinions have been stricken or limited, get copies of the Orders doing so.
And then CALL the lawyers who successfully limited or struck that expert’s testimony. Find out how they did it. And remember, if there was a hearing on the issue, there is a transcript of the hearing. You need to get that transcript because it is sworn testimony by that expert that you can use later.
The next thing you want to do is read every deposition you can find that the expert has given. Trust us, with some of these Plaintiff’s safety experts, that can be a daunting task. Some of them seem to testify every week.
But it is time well spent. For instance, let’s say that you are defending a trucking company that rear-ended a passenger car. The Plaintiff’s safety expert has a litany of criticisms against your driver and your company for causing the accident.
Now, let’s say that you’re on your 27th deposition of this expert where you find that he was hired in a case where a commercial motor vehicle driver rear-ended another commercial motor vehicle and was badly injured. Guess what, that expert, in that case, gave a long list of reasons why the Plaintiff commercial motor vehicle truck driver should not be held responsible for rear-ending a tractor trailer in front of him. You can use that testimony to show a jury that this expert essentially is going to say whatever needs to be said to satisfy the person who hires them.
In the same vein, you are looking for admissions that the expert has made in other depositions. You need to make a list of all of those and know them by page and line number so that you can elicit them, in bullet point style, when you have that expert on the stand. And we find that it is best to start the question something like this: “Mr. Smith, isn’t it true that you have testified under oath in the Northern District Court of Texas that __________?” By phrasing the questions this way, you are telling the expert that you know the source of the question you are asking. You also let the jury know that this expert has given sworn testimony under oath and if they try to back away from it, they are likely not going to be viewed as credible.
Finally, look at other reports that this expert has written. Not surprisingly, you may find that most of their reports are simply “cut and paste jobs.” And if you are lucky, you may find where the expert forgot to cut certain pieces out of prior reports so that he has information about one case in another report from another case. Effectively cross-examining the Plaintiff’s safety expert on issues like this will paint the expert as somebody who simply throws together reports and rehashes old opinions – regardless of whether they apply to the case or not.