key points. Do not use cross to give the expert the opportunity to repeat damaging testimony. Only ask short and precise leading questions. Do not let the witness explain. Remember, as Robert Townsend said, “An expert is someone who borrows your watch, tells you what time it is and then walks off with your watch.” Only ask questions you know the answer to. Never ask why? Save your knock-out punch for closing not cross. Tips on cross-examining a vocational expert Try to use keywords like speculative, speculate, certainty, guess or similar words as much as possible in your questions. That means writing out a few stock examples of questions which you can review, modify, revise or alter. For example, wouldn’t you agree it is speculative to say this employer would actually hire my client, wouldn’t you agree you are speculating what the starting wage would be when offered to any particular applicant, wouldn’t you agree you are speculating whether an employer would choose my client over a younger employee that might stay longer, wouldn’t you agree you are just guessing how many people might also apply for this job, or, can you tell this court with any certainty that my client would be hired compared to someone with more recent or specialized work experience? Tips on challenging pension valuation opinions: Distinguish objective assumptions such as a parties’ ages, the date of marriage, the vesting date, etc. from subjective assumptions such as the interest rate (also called discount rate), the mortality rate and the date of retirement. Tips regarding business valuation experts: Remember the trial court has the authority to reject the findings of the experts enlisted by the parties. If it does so, the trial court must identify the evidence it relied on, as well as the method it used, to find a value for an asset. It is your job to give the judge the pathway to rejecting the opinion while building a record of the alternate evidence and method of valuation. When all is said and done, there are two things more important than your cross examination. Preserving your record for appeal and giving the judge a road map to the result you want in closing argument. A party appealing cannot simply argue the expert did it wrong. A party desiring to challenge the methodology accepted by a trial court must produce other testimony challenging that methodology and must set out the prejudicial error that resulted from the use of that methodology. A party cannot argue on appeal that the methodology used by the trial court failed to reasonably approximate the net value of their practice when they did not object to the methodology during trial. Remember, the very basic element of the expert testimony evidence rule is the expert’s opinion is admissible if it “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Your goal is to encourage the trial court to exercise its authority to reject the findings of the experts enlisted by the parties if it is not assisting the court. But remember, if you are successful in your approach, the trial court must identify the evidence it did rely on as well as the method it used. 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 and to demonstrate why such a choice will be upheld on appeal. 29 Trial Lawyer | Summer 2024
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