EXPERT WITNESS CROSS-EXAMINATION OUTLINE

Strategies for Challenging Opposing Expert Testimony

Case Information

Case Caption: [________________________________]

Case Number: [________________________________]

Court: [________________________________]

Opposing Expert Name: [________________________________]

Expert's Field: [________________________________]

Retaining Party: ☐ Plaintiff ☐ Defendant

I. Pre-Cross-Examination Preparation

A. Expert Background Research

☐ Obtain and review expert's CV
☐ Search for prior testimony (PACER, Westlaw Expert, etc.)
☐ Review prior deposition transcripts
☐ Review prior trial transcripts
☐ Search for publications and writings
☐ Check for disciplinary actions or license issues
☐ Research fee history and expert witness income
☐ Search social media and online presence

Research Findings:
| Source | Relevant Information |
|--------|---------------------|
| [________________] | [________________] |
| [________________] | [________________] |
| [________________] | [________________] |

B. Report and Deposition Analysis

☐ Review expert report in detail
☐ Identify unsupported conclusions
☐ Note assumptions made
☐ List materials NOT reviewed
☐ Identify methodology weaknesses
☐ Mark inconsistencies with deposition
☐ Compare with authoritative texts

Key Weaknesses Identified:
1. [________________________________]
2. [________________________________]
3. [________________________________]
4. [________________________________]
5. [________________________________]

C. Cross-Examination Goals

Primary Goals:
☐ Limit expert's credibility with jury
☐ Expose bias or financial motivation
☐ Undermine methodology
☐ Obtain favorable admissions
☐ Highlight limitations of opinions
☐ Create reasonable doubt about conclusions

DO NOT:
☐ Try to win the case on cross-examination alone
☐ Ask one question too many
☐ Argue with the expert
☐ Allow expert to repeat damaging opinions
☐ Lose control of the witness

II. The Three C's of Impeachment

A. Commit

Purpose: Lock the witness into their current testimony before impeaching.

Sample Questions:
Q: Dr. [Name], you testified on direct that [specific opinion], correct?
Q: And that is your opinion today, sitting here in this courtroom?
Q: You're not going to change that opinion, are you?

B. Credit

Purpose: Establish the reliability/importance of the prior statement.

Sample Questions:
Q: You were deposed in this case on [date], correct?
Q: You understood you were under oath during that deposition?
Q: You had an opportunity to review documents before giving that testimony?
Q: Your attorney was present during that deposition?
Q: You understood the importance of providing accurate testimony?

C. Confront

Purpose: Present the prior inconsistent statement.

Sample Questions:
Q: I'm going to read from page [X], line [Y] of your deposition...
Q: Did I read that correctly?
Q: That was your testimony under oath, wasn't it?

III. Cross-Examination Areas

A. Qualifications Challenge

Objective: Demonstrate expert lacks specific qualifications for THIS case.

Questions:

Q: You are not board certified in [specific area], correct?
A: [________________________________]

Q: You have never [performed specific procedure/analysis], have you?
A: [________________________________]

Q: Your publications are in [general area], not [specific issue in case], correct?
A: [________________________________]

Q: You stopped actively practicing in [year], didn't you?
A: [________________________________]

Q: The last time you [performed relevant activity] was [X years] ago, wasn't it?
A: [________________________________]

Key Qualification Gaps:
| Claimed Qualification | Actual Gap |
|----------------------|------------|
| [________________] | [________________] |
| [________________] | [________________] |

B. Bias and Financial Interest

Objective: Expose expert's financial motivation and repeat-player status.

Questions - Compensation:

Q: You are being paid to testify here today, correct?
A: [________________________________]

Q: What is your hourly rate for testimony?
A: [________________________________]

Q: How much have you been paid in this case so far?
A: [________________________________]

Q: You expect to be paid more after today, don't you?
A: [________________________________]

Questions - Repeat Engagements:

Q: How many times have you been retained by [law firm]?
A: [________________________________]

Q: In the last year, how many cases have you worked on for [plaintiff/defense] attorneys?
A: [________________________________]

Q: What percentage of your income comes from expert witness work?
A: [________________________________]

Q: You've testified in approximately [X] cases, and [Y%] were for [plaintiffs/defendants], correct?
A: [________________________________]

Questions - Financial Records:

Q: You keep records of your expert witness income, don't you?
A: [________________________________]

Q: Your records show you earned $[amount] from expert work last year, correct?
A: [________________________________]

Compensation Summary:
| Item | Amount |
|------|--------|
| Hourly rate (preparation) | $[________] |
| Hourly rate (testimony) | $[________] |
| Total billed this case | $[________] |
| Annual expert income | $[________] |
| Times retained by same firm | [________] |

C. Methodology Critique

Objective: Demonstrate unreliable methodology under Daubert/Rule 702.

Questions - Testing:

Q: Your methodology has not been subjected to peer review, has it?
A: [________________________________]

Q: You cannot point to any published study that validates your approach, can you?
A: [________________________________]

Q: Your technique has no known error rate, does it?
A: [________________________________]

Questions - Data Sufficiency:

Q: You did not review [specific document], did you?
A: [________________________________]

Q: You were not aware of [specific fact] when you formed your opinion, were you?
A: [________________________________]

Q: If [assumed fact] were not true, your opinion would change, wouldn't it?
A: [________________________________]

Questions - Standards:

Q: There is no industry standard that requires [expert's approach], is there?
A: [________________________________]

Q: Other experts in your field use different methods, don't they?
A: [________________________________]

Q: The [authoritative organization] does not endorse your methodology, does it?
A: [________________________________]

Methodology Weaknesses:
| Issue | Supporting Evidence |
|-------|-------------------|
| [________________] | [________________] |
| [________________] | [________________] |

D. Incomplete Investigation

Objective: Show expert failed to consider relevant information.

Questions:

Q: You never examined [physical evidence/location/person], did you?
A: [________________________________]

Q: You relied entirely on documents provided by counsel, correct?
A: [________________________________]

Q: You did not conduct any independent investigation, did you?
A: [________________________________]

Q: You were not provided with [specific document], were you?
A: [________________________________]

Q: You never spoke with [key witness], did you?
A: [________________________________]

Materials NOT Reviewed:
☐ [________________________________]
☐ [________________________________]
☐ [________________________________]
☐ [________________________________]

E. Prior Inconsistent Statements

Objective: Impeach with deposition testimony or prior writings.

Preparation - Identify Inconsistencies:

Impeachment Sequence:

1. Commit: "Your testimony today is [X], correct?"
2. Credit: "You remember being deposed on [date]?"
3. Confront: "Let me read from page [X], line [Y]..."

F. Treatise Impeachment (FRE 803(18))

Objective: Use authoritative texts to contradict expert's opinions.

Foundation Questions:

Q: Are you familiar with [treatise/textbook]?
A: [________________________________]

Q: [Author] is recognized as an authority in this field, isn't [he/she]?
A: [________________________________]

Q: This text is used in medical schools/graduate programs, isn't it?
A: [________________________________]

Q: You would agree this is a reliable authority in your field?
A: [________________________________]

Reading from Treatise:

Q: I'm reading from page [X]: "[quote contradicting expert]." Did I read that correctly?

Treatises to Use:
| Title | Author | Relevant Passage | Page |
|-------|--------|------------------|------|
| [________________] | [________________] | [________________] | [____] |
| [________________] | [________________] | [________________] | [____] |

G. Alternative Conclusions

Objective: Establish that different conclusions are possible.

Questions:

Q: You would agree that reasonable experts can disagree on [issue]?
A: [________________________________]

Q: It is possible that [alternative explanation] caused [result], isn't it?
A: [________________________________]

Q: You cannot rule out [alternative cause], can you?
A: [________________________________]

Q: Your opinion is not the only reasonable interpretation, is it?
A: [________________________________]

Q: If [fact] were different, your conclusion might change, correct?
A: [________________________________]

H. Concessions

Objective: Obtain admissions favorable to your case.

Target Concessions:
| Desired Admission | Question to Ask |
|-------------------|-----------------|
| [________________] | [________________] |
| [________________] | [________________] |
| [________________] | [________________] |
| [________________] | [________________] |

Build-Up Questions:
(Series of small admissions leading to key concession)

Q: [________________________________]
Q: [________________________________]
Q: [________________________________]
Q: And therefore, [key concession], correct?

IV. Cross-Examination Techniques

A. Question Format

☐ Use leading questions only
☐ One fact per question
☐ Short, simple sentences
☐ State facts, expert confirms
☐ Never ask "why"
☐ Never ask open-ended questions

Example - Proper Form:
"You billed 40 hours on this case, correct?"
"Your hourly rate is $600, correct?"
"That means you've earned $24,000 on this case, correct?"

B. Controlling the Witness

When Expert Volunteers Information:
"Dr. [Name], my question was simply [restate question]. Please answer yes or no."

When Expert Avoids Answering:
"Doctor, that wasn't my question. Let me ask it again..."

When Expert Becomes Argumentative:
"Your Honor, I would ask that the witness be instructed to answer the question asked."

C. Pacing and Rhythm

☐ Maintain steady pace
☐ Pause before important questions
☐ Do not rush impeachment
☐ Allow jury to absorb key points
☐ Use silence effectively

V. Cross-Examination Outline Structure

Opening (Establish Control)

Time: [____] minutes

1. [________________________________]
2. [________________________________]
3. [________________________________]

Qualifications/Bias

Time: [____] minutes

1. [________________________________]
2. [________________________________]
3. [________________________________]

Methodology/Data

Time: [____] minutes

1. [________________________________]
2. [________________________________]
3. [________________________________]

Key Impeachment Points

Time: [____] minutes

1. [________________________________]
2. [________________________________]
3. [________________________________]

Concessions

Time: [____] minutes

1. [________________________________]
2. [________________________________]
3. [________________________________]

Closing (End Strong)

Time: [____] minutes

1. [________________________________]
2. [________________________________]

Total Estimated Time: [____] minutes

VI. Documents for Cross-Examination

A. Documents to Have Ready

B. Document Organization

☐ Tab all key pages
☐ Highlight relevant passages
☐ Have multiple copies available
☐ Organize in order of use
☐ Prepare enlargements for key exhibits

VII. Post-Cross-Examination Notes

A. Key Points Made

☐ [________________________________]
☐ [________________________________]
☐ [________________________________]
☐ [________________________________]

B. Concessions Obtained

☐ [________________________________]
☐ [________________________________]
☐ [________________________________]

C. Unexpected Testimony

[________________________________]
[________________________________]

D. Points for Closing Argument

[________________________________]
[________________________________]
[________________________________]

VIII. Emergency Responses

If Expert Gives Unexpected Answer:

☐ Move on - don't dwell on it
☐ Return to it later if needed
☐ Impeach if prior inconsistent statement exists
☐ Save for closing argument

If Expert Becomes Hostile:

☐ Remain calm and professional
☐ Ask court to instruct witness
☐ Use expert's hostility against them
☐ Document behavior for closing

If You Lose a Point:

☐ Don't argue
☐ Move to next topic
☐ Don't let jury see frustration
☐ Address in closing if necessary

Sources and References

• Federal Rules of Evidence, Rule 611 - https://www.law.cornell.edu/rules/fre/rule_611
• Federal Rules of Evidence, Rule 613 - https://www.law.cornell.edu/rules/fre/rule_613
• Federal Rules of Evidence, Rule 702 - https://www.law.cornell.edu/rules/fre/rule_702
• Courtroom Sciences: Cross-Examining Expert Witnesses - https://www.courtroomsciences.com/
• Holland & Knight: Cross-Examination and the Three C's - https://www.hklaw.com/

REMINDER: The goal of cross-examination is not to destroy the expert but to give the jury reasons to doubt the expert's conclusions. Focus on specific, achievable objectives rather than attempting to "win" on every point. End on a strong note, even if it means cutting the examination short.