More succinctly, in evaluating the admissibility of expert testimony, the court “must identify and evaluate the probative value of the evidence, consider how it might impair rather than help the factfinder, and decide whether truth-finding is better served by exclusion or admission.” State v. Brown, 297 Or 404, 409 (1984). Vetting and Preparing Your Experts Vetting your experts is important. Meet face-to-face if you can and review their resume and any literature they have published thoroughly. Meeting with experts in person helps establish trust and ensures they not only understand what you will be asking them on direct examination, but also how they may be challenged on cross-examination. Take the time to educate the expert about your theory of the case and make sure they understand how the law applies to the facts of your case. For example, doctors may understand the medicine but not how the law favors your client’s position. Educating your expert witness on supportive legal concepts such as UCJI 70.06 (Previous Infirm Condition), UCJI 70.07 (Aggravation of Preexisting Injury or Disability), or Res Ipsa Loquitor can be important. Challenging Defense Expert Witnesses Challenging the defendant’s expert witnesses is just as crucial to winning your trial as retaining your own strong experts for your case. An early line of attack is to seek to exclude expert testimony based on the applicable court standards for admissibility. This can be done via motions in limine or an OEC 104 hearing to succeed on your motion — ask for it. This entails a preliminary hearing before the court without the jury to determine the qualifications of a witness to testify, the admissibility of certain evidence or whether the expert is qualified to testify. The questions go to the competence of the witness to testify as an expert and/or the reliability of the methodology or data used by the witness to arrive at their opinion. Cross-Examining Defense Experts Cross-examination of experts can be challenging. Expert witnesses come to court to provide opinions, not just to testify as to the facts, because they can help the jury understand some important aspects of the case. Opinions are squishy and are moving targets; they are harder to cross-examine and pin down than concrete facts. An effective cross-examination tells the jury a story and explains to them why the expert’s opinion is not credible and should not be believed. The question to answer is: what am I trying to tell the jury with this cross-examination? You need your cross to be short and sweet but devastating. Go in with a game plan and know the points you want to make. A cross-examination that results in the expert being allowed to simply repeat most of what they just said in direct examination is a terrible approach. If you don’t feel confident, The Expert Witness in Your Next Trial continued from p. 21 22 Trial Lawyer | Winter 2025
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