Posted by wlansden |
Filed under general, trial tips
By Eileen Burkhalter Smith
I was reminded this weekend, by Mona Lisa Vito, no less, about what can happen when an expert witness is hostile—your expert witness. As is universally recognized, expert witnesses should be treated differently than fact witnesses—even if they are on your side.
In a recent trial, I saw counsel (for the other side, lucky for me) struggling with her expert witness. Though the expert was saying everything technically as anticipated, it was clear that the expert did not think much of the party for which he was testifying. The expert was testifying for the plaintiff, but made several derogatory comments about the plaintiff’s behavior in a slip and fall action. The expert went so far as to state that the precautions that he thought should have been taken were akin to “idiot-proofing.” Not only did this comment get a chuckle from everyone, including the jury, but the Judge picked it up as well—using the same phrase in side comments during the jury charge.
The expert was well-seasoned and clearly not interested in the subtle clues that my opponent was using to get him back on track. In my opinion, the expert’s attitude really hurt my opponent’s case. I would be willing to bet that his throw-away comment was the only thing the jury remembered from all of the experts!
Vinny Gambini knew when his expert was hostile, and immediately asked the Judge to allow him to treat her as such. I am not sure my opponent needed to take that step, but I wonder if leading questions could have kept him a bit more tongue-tied?
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