was ineffective as she maintained she was not an expert, but she could do math, and all she testified about was math and how the spreadsheet was created. The court’s final ruling was that Johnson’s expert was “no expert,” the use of prior sales was an appropriate way to value the remaining cards at a discount, and his card collection was of equal value to Kathryn Johnson’s pension and house. We accomplished our goal by cross-examining and impeaching the other side’s expert while having no expert of our own. In my CLE presentations about expert witnesses, I use this case as an example of how you can win without an expert if you can impeach the other side’s expert and appeal to the judge’s own common sense. This case addresses all of the issues so common to cross-examining and impeaching an expert. In family law you are likely to confront the following experts in a trial: investment, tax, business valuation, personal and real property appraisers, doctors, counselors, psychologist and parenting time experts. With each expert, you have to ask yourself, “Am I going to accept or reject the expert’s opinion?” If you are accepting the opinion, are there any questions to ask at all, will questions be limited to setting up your own expert and are you accepting the investigation but not the opinion? If you are rejecting the opinion of the expert, you will need to evaluate whether the best plan of attack is to attack the qualifications, attack the proficiency, question the methodology, question the expert’s independence or challenge the investigation, the opinion or both. If you are challenging the opinion, then you must strategize as to how you will support your attack and build a record through admissions in discovery, treatises and case law, using your own expert, offering the court another form of reliable opposing evidence or your brilliant cross examination. Every cross-examination needs a theme because the biggest challenge in cross-examining an expert is whether your challenge will only impact the weight to be given the evidence rather than the admissibility of the evidence at all. You need to consider if there is a valid challenge to the opposing expert’s qualifications and whether there has been a reliable application of those principles and methods to the facts of the case. At the end of the day, it usually comes down to the weight of the opinion and not its admissibility. All too often we hear a judge say any deficiencies in the expert’s methodology are relevant in considering the expert’s credibility and the weight to be given his testimony, but they did not render the opinion inadmissible. As a result, it is critical to know your judge! Is this a judge who hangs their hat on expert testimony? In the end, the key to a successful cross-examination of an expert in a family law matter is to appeal to the judge’s need and desire to not sacrifice their judicial independence by accepting the scientific hypotheses on the faith and independent research conducted by the expert. Generally speaking, all expert cross-examinations have common considerations. Who hired the expert, what were they asked to do, what did they actually do, to whom did they talk, what data, research and assumptions did they rely on, and what methodology did they employ and why? Evaluate the likelihood the opposing expert opinion will be accepted by the court at trial and whether you want your own expert at counsel table. Always have a goal such as making no more than three or four “Your most important job in closing argument is to explain to the judge why your evidence is more persuasive, tell the judge what findings they should rely on to rule in your favor.” Expert Witnesses continued from p. 27 28 Trial Lawyer | Summer 2024
RkJQdWJsaXNoZXIy Nzc3ODM=