Articles Posted in Trial Strategy

In The Biggest Mistake Attorneys Make When Hiring a Medical Expert, medical malpractice expert witness Dr. Honor Schoech writes:

I was recently hired as a consulting medical expert by a new client. The attorney was representing an elderly woman who was suing a nursing home for negligence. She needed me to review the case quickly for an upcoming deadline.

Before I received the medical records from this attorney, she sent me a summary of the facts. It was thorough and concise, and the medical terminology used was quite advanced. My initial impression was that I was reading a summary from a physician who had already been consulted on the case. I assumed that I was being hired for a second opinion, and that perhaps the original physician was unable to support her views.

In The Four Main Advantages of Trial Lawyer against Expert Witness, attorney Dean Brett writes on what he describes as “one of the trial attorney’s most difficult tasks.”

In the three earlier articles of this series, I discussed the reasons why you need to cross-examine an expert witness, the four main advantages a trial lawyer has over an expert witness, and the four stages of general preparation for the cross-examination. In Part 4, I will discuss the specific preparation required to undertake an effective cross-examination.

Specific Preparation

In Discovery “Story Boarding trial consultant expert Molly M. Murphy shares her strategies to get the jury to understand and connect with your case.

A case comes into your office. If you are a defense firm you receive the filed complaint, so you know what the cause of actions are being alleged. If you are a plaintiff firm, a client comes in with the story of being wronged. Plaintiff presents the case and defense picks up the story and begins the discovery of how to defend their client. Whether you are a plaintiff or a defense attorney you both have the responsibility of building your case.

The initial step of working your case up begins with, “What is this case about?” Each side will have their own version of what happened, why it happened and was it avoidable.

In 4 Corners of Your Case, trial consultant expert Molly M. Murphy shares her strategies to get the jury to understand and connect with your case.

Craft the story of your case in a manner that touches the senses of right and wrong. Our listening filters hear what makes sense and what seems right in our own mind. We bring our childhood through adulthood memories in to play when they are called upon through smells, sights, sounds, words, phrasing, tone, images and colors. Our senses are the key promoters to remembering an event or experience. Our attachment to a story leads to a connection. We are all storytellers so we view others’ story with a discerning eye. Question if the storyteller is telling the truth, making it up or worse, trying to be deceptive. The jury is faced with two parties telling them that their side is right and the other side is not admitting to their wrong doing.

There are four main points that you want the jury to understand and connect with your case. You should be able to tell your story with these main points.

In The Four Main Advantages of Trial Lawyer against Expert Witness, attorney Dean Brett writes on what he describes as “one of the trial attorney’s most difficult tasks.”

In the first part of this article series on the topic of how to prepare for cross examination of the defense expert witness, I discussed why an attorney would cross-examine a defense expert, and the advantages that expert has in influencing a jury. In the second part of the article series, I reviewed the four primary advantages that a trial attorney has against an expert witness in his own professional territory.

In this third part of the series, I’ll discuss the four stages of general preparation for the cross-examination of the defense expert. I have found throughout my career that each stage is crucial to enabling me to deliver the most effective cross-examination possible.

In The Four Main Advantages of Trial Lawyer against Expert Witness, attorney Dean Brett writes:

Throughout my years as a trial attorney, I have found that one of the most challenging aspects of trial is cross-examining an expert witness. I’ve written an article series describing my experience and the methods I’ve used that have allowed me to gain real advantages through cross-examination of an expert witness. These methods have proven highly successful for me for 40+ years. I will be publishing the article series over the next several days, so keep an eye out for the next installment.

In the first part of this article series, I described the reasons that a trial attorney needs to cross-examine an expert witness.

In How to prepare to cross-examine an expert witness, attorney Dean Brett writes on what he describes as “one of the trial attorney’s most difficult tasks.”

Throughout my years as a trial attorney, I have found that one of the most challenging aspects of trial is cross-examining an expert witness. I’ve written an article series describing my experience and the methods I’ve used that have allowed me to gain real advantages through cross-examination of an expert witness. These methods have proven highly successful for me for 40+ years. I will be publishing the article series over the next several days, so keep an eye out for the next installment.

Part 1 – Why cross-examine an expert witness?

In Using Marketing, Business & Competitive Research to Win Cases, business and corporate strategy expert witness Don E. Smith, President, American Consulting Group, Inc., writes that marketing research is a powerful tool that helps lawyers win cases.

Many market research expert witnesses have an undergraduate degree in their specialty (engineering, business, marketing) and an MBA or PhD. They average over twenty years of business experience. Unfortunately, some lawyers do not recognize the value of marketing research…and put their cases at risk. For example, many lawyers bring in an expert to express an opinion based on his/her experiences. In many cases, this experience is narrow; the expert’s testimony is weak. With effective research, numerous facts from a range of sources provide a far more convincing argument.

Advertising effectiveness Market share Agent performance Market size & growth Best effort evaluation New product opportunity Competition Pricing Competitive analysis Profit loss Dealer performance Sales loss Distributor performance Sales performance Effectiveness of programs

In Persuasive Expert Testimony, medical expert witnesses at American Medical Forensic Specialists write:

The March 2014 issue of Plaintiff Magazine discussed the secret in turning a jury of common people into smart alecs on complex medical or science concepts.

The key to capturing the attention of lay people on specialized or unfamiliar subjects is in the direct examination of experts. During direct examination, begin by establishing the credibility of an expert. To do so, meet the requirements of the Evidence Code in the state or federal jurisdiction. In California, for example, the Evidence Code requires an expert to be with “special knowledge, skill, experience, training and education” to render an opinion if the subject matter is “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.”

In Why a Medical Expert Witness Can Make or Break a Case, pulmonary medicine expert witness Dr. John Penek, MD, FCCP, FAASM, writes:

Whether the court case is civil or criminal in nature, both plaintiffs and defendants can benefit from the use of a medical expert witness. This is especially true in an era where forensic technology is growing by leaps and bounds.

Just what can a medical experts offer in the realm of traditional jurisprudence?