Houston criminal defense lawyer Mark Bennett, at his great Blawg, Defending People, has been giving a master’s class on the cross-examination of the medical expert.

Class 1:  Dealing With the State’s Expert: One Last Question

Class 2:  Preparing to Cross-Examine the Doctor

Class 3:   The Next Step in Preparing to Cross-Examine the Doctor

I hope that Mark continues the class, as this is a critical area where too many lawyers get caught short, feeling as if they can’t do anything about expert testimony that cuts against them, other than put on their own expert to contradict the State’s.  For many, the ability to find and pay for an expert makes this option impossible, and leaves the case in the hands of the prosecution’s guy.

I want to emphasize a critical point that Mark makes in his third lecture.  While we may never gain the level of expertise that the witness possesses, we can, in a very short time, gain substantial expertise in the extremely narrow area about which she will give testimony.  This true of physicians, as well as any other legitimate expert.  The information is out there, and lawyers should neither be too afraid nor too lazy to learn it.  It is amazing what we can learn in a brief period of time about a very specific area of expertise.

Experts testify within a comfort zone.  They don’t fear cross because they believe two things: First, that they do not testify for one side or the other, but rather about the subject of their expertise.  Second, that they know enough about their area of expertise that they can handle us.

Neither of these beliefs is necessary true.  The experts frequently offer testimony as conclusive when they know quite well that it’s equivocal.  If it could support either position, based on how the expert spins the answer, or what details are conveniently left out, then the expert indeed is working for a living, and serving his employer.

Second, the expert assumes that we will use a rhetorical attack at best, never substantive.  That’s what Mark is trying to tell us.  If we try to talk circles around the expert because we are just brilliant, shoot from the hip lawyers, we are likely to get beaten, and beaten badly.  Not only will we fail to effectively deal with the expert, but we will shoot down our own credibility.  Experts do not anticipate that we will know the literature, the language, the testing capabilities and problems, all the details that make up an area of expertise. 

When experts hide behind jargon, we can unmask them.  When experts assert that tests prove something conclusively, we can show that false-positive failure rates, or how the field previously claimed conclusive proof only to later change (and often change again) their view of testing efficacy. 

And even if the expert’s belief that he is neutral and correct is accurate, there is the one thing left for us to do that is the best of all:  Turn the prosecution’s expert into our expert.  They have located, paid and prepped him.  They’ve endorse his qualifications.  If we, through our research, can find a way to have him say something that favors the defense (i.e., the wound is consistent with a number of weapons other than the .22 caliber handgun claimed by the prosecution), this can be a huge score for the defense. 

This is a great series and one that I recommend to everyone.  I thank Mark for the effort of putting it together and hope he continues the series.