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[Tvoivozhd <tvoivozd AT infionline.net>]

tvoivozhd---been there, done that. That's why a cheap lawyer is the most 
expensive lawyer you can hire---losing a won case is very costly. In the 
last case in Houston my partner and I paid our law firm $750,000 to win 
our case..

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     The Expert Ambush


       How to hold off your opponent until the cavalry arrives.


         *By: Marcel Matley E-mail: mmatley AT aol.com
         <mailto:mmatley AT aol.com>*

In many western movies a wagon train moves across the prairie. Success 
looms just over the horizon, when suddenly they are ambushed by Indians. 
The wagons circle in a desperate fight against all odds. One brave 
fellow breaks out to make a run to the fort, which fortunately is just 
across the hills in the next valley. In the nick of time before all hope 
fades, and just in time for dinner if not afternoon tea, the cavalry 
arrives with flags flying and bugles blaring.

But this is not a movie; this is your court case. It is 8:30 a.m. 
Plaintiff rested yesterday. You have a short, sweet and devastating 
defense. You are leading your defendant-client to the trail’s end of 
litigation: success over plaintiff’s assertion that your client signed 
this $100,000 lease on a chicken hutch. In stately order your client and 
sundry other witnesses cumulatively prove that: 1, defendant was out of 
town the day the document was purportedly signed (he has signed and 
dated charge slips to prove it); 2, defendant (as his mother assures the 
court) never wrote that way; and 3, defendant never even did any 
business with plaintiff’s firm (per plaintiff’s ex-employee).

Each of your witnesses is unscathed by cross-examination. You rest. It 
is almost 10 a.m., so the judge takes the morning break. Upon 
re-convening, plaintiff attorney says: "Your Honor, I have one witness 
in rebuttal."

Your opponent knew your defense would be denial of the signature. He 
knew you had a line of witnesses to impeach his only witness, plaintiff 
himself. He had to have planned this all along. When the judge says, 
"Call your rebuttal witness," he says: "Plaintiff calls Mr. Q.D. Expert 
who will testify to the authenticity of the lease signature." The expert 
ambush is sprung. Your wagon train goes into panic. Defendant, 
defendant’s mother, all your people are asking you what is going on. 
Worst of all, you have never faced that brand of expert before.

You immediately make every possible objection you can recall since the 
first day of law school, no matter how remotely applicable it is. The 
judge brushes them all aside, assuring you of a fair opportunity to 
cross-examination, his rebuttal witness will finish by lunch, thus 
arguments can proceed at 1:30 as both parties and the court had 
anticipated. Somehow you do not find all this assurance reassuring.

How very considerate of your opponent not to upset your plans for the 
rest of the day. However, you need tonight to find out how to counter 
this Mr. Q.D. Expert, and then you will need tomorrow to pull it off. 
For all practical purposes, you might just as well be facing an expert 
from Venus testifying on the fusion power units of Martian spaceships. 
How can you find in short order an expert of your own to tell you how to 
handle this strange creature taking the oath and giving you a gaze of 
conquest and superiority?

There may be no cavalry to call even if you could call them. They might 
never arrive in time anyway. Your case is one wagon train wiped out with 
victory in sight. You’re a goner. Right? Not necessarily.

The expert ambush need not be a handwriting expert; it could be any kind 
of expert. Since I know about handwriting, I will use it to illustrate 
how to hold out until you can call in your own expert trooper, of 
whatever brand expert. Not being an attorney, I cannot tell you about 
laws and rules, only about techniques for taking the upper hand over the 
expert who knows it all, while you know nothing at all about that expertise.

A Few General Pointers

The usual guidelines for cross-examining an expert are either 
inapplicable when facing the expert ambush or require modification. You 
are in a desperate situation, and desperation calls for desperate measures.

Your strategy is to make as legitimately lengthy an examination as 
possible. Extend voir dire till you can call in a consultant to help 
with cross-examination of the expert’s testimony in chief. In the 
illustrative example, that means using up to one and a half hours for a 
thorough voir dire after the fifteen-minute, or less, presentation of 
qualifications. The 60 to 90 minutes for lunch might permit finding 
someone who can come in today.

Then your strategy is to make a technically and properly complete 
cross-examination till the 5 p.m. adjournment. At which time the judge 
should be informed either that your examination is complete or precisely 
how much more you have to go. Resist the ploy of telling the judge you 
only have two or three more questions. As we all know, when an attorney 
says, "I only have two or three more questions to go," the word 
"question" is a synonym for "hour."

And what is another night without sleep during litigation? You and your 
expert consultant cum surrebuttal witness, will be able to prepare the 
presentation which will be a brief and deft coup de gras to your 
opponent’s case.

Tactics

Now for tactics. You do not want just to kill time, as that would rouse 
the judge’s legitimate ire. Begin by explaining to the judge that you 
will need to pursue in court all the discovery and deposition you would 
have pursued pre-trial if your opponent had been courteous and honest 
enough to disclose his long and well-laid plans for calling Mr. Q.D. 
Expert. Request adjournment to permit such a full-scale discovery. If 
denied, your first task is to conduct just about the most complete 
expert voir dire you ever conducted, but doing it cold. Getting the 
knack of that will give you the knack of a prolonged and thorough 
cross-examination.

Your first need is for a copy of Mr. Q.D. Expert’s curriculum vitae. No 
matter how short it is, it has to be made up of words, and every word is 
a universe in its own right. And every universe is filled with many, 
many questions, all of which you can ask. So:

1. Voir dire every sentence in the c.v., down to each phrase and every 
word. With a one-page c.v., for example, one could legitimately 
interrogate for a couple days at least, barring total exhaustion of 
judicial patience. It starts off: "Duties encompass…." And gives three 
complex combinations of duties, one of which reads: "restoration and 
decipher of indented, erased, altered and obliterated writings." You 
could ask the same dozen or more questions of each of those six 
principal words, but I will illustrate a few for "indented" only.

   * Mr. Expert, please define "indented writings."
   * In what situations do you encounter indented writings?
   * What special equipment do you employ in restoring indented
     writings? In deciphering indented writings? Please explain each
     one and its use.
   * What training did you receive to use [name each piece of equipment
     in turn] properly?
   * [After several more such questions] What application does
     examination of indented writings have in determining the
     authenticity of defendant’s purported signature on the lease to
     the chicken hutch?
   * None? So really your qualification in indented writings, which we
     have been exploring for the last 45 minutes, is irrelevant to the
     problem before this court, right? Your honor, I move that this
     witness be dismissed as having irrelevant qualifications, based on
     his own testimony just now.

2. Explore each book, article or author he has read in his field, along 
with every class, conference or meeting of any kind he ever attended. 
Particularly, ask of each whether it is an authority relied on in this 
case. Authoritative authors are gold mines of impeachment. If to escape 
such a source of impeachment the expert names no authoritative author 
relied on (a trick an ABFDE expert got away with once, while another 
said he was his own and only authority), he cannot qualify as practicing 
an established, recognized discipline or science. He would likely not 
qualify under either a Frye or a Daubert type of test for admissibility 
of scientific testimony.

3. Have the expert define every technical term employed, plus every 
technical or obscure term used in the definition. For example, 
handwriting experts love to explain away differences between the 
disputed and exemplar signatures by saying they are "normal range of 
variation." That phrase simply begs for a two-hour exploration of what 
the three terms mean and how they are ascertained in this specific 
instance. For example, ask:

   * "Normal." That means based on some norm, right? What is the norm
     upon which you base this supposed range of variation?
   * Let me help you out. Is it the normal as opposed to the abnormal
     or subnormal? [If the expert is silly enough to go for that, you
     can challenge on lack of psychological training.] As to what most
     people in San Francisco or the Bay Area or California or the U.S.
     or the world do?
   * What are the scientific criteria for identifying this norm? What
     are the statistical, research studies which establish it? Where
     are they published?
   * Explore thoroughly each published study the expert mentions.

Do the same for "range and "variation." With a few such well-aimed 
queries, you will find there is a lot of fluff and hot air in a lot of 
expertise.

4. Make the expert describe in detail each piece of equipment he owns, 
its purpose, function, operation, cost, training received, etc. and so 
on. Then ask its application in this case. If applied in this case, 
explore exactly how applied and the totality of results. If not applied, 
then why not and does that not indicate more irrelevant qualifications 
for identifying a signature? If you have a penchant for unfair deviltry, 
you can say: "You" honor, we need a specialist, not some jack of all 
trades who cannot focus on any particular skill, but will do whatever he 
can to earn a buck."

5. Obtain from Mr. Q.D. Expert the most detailed step-by-step 
description of his method for doing each thing he did in this case. Then 
ask for a complete explication for each step: who established it; what 
proves its validity; what proves you are reliable in performing it; is 
there not a better way to do it; plus similar enquiries as your wisdom 
brings forth.

6. Employ all the usual voir dire questions, even if you suspect some 
will yield no beneficial information. Remember, surviving until tomorrow 
when your cavalry comes is your only hope of surviving this litigation. 
Besides, you never know when and where you will strike evidential gold.

7. Before you can complete your third question, the judge will start 
realizing that this case may not end today. Besides already being tired 
of seeing both counsel, the judge desperately does not want a clogged 
court calendar to become more clogged. At the same time, plaintiff 
attorney knows his expert ambush will succeed only if it and the entire 
case end today. Judge and opposing counsel have an interest in common: 
Push you to expedite your voir dire and cross-examination. So your 
seventh tactic will be methods to resist being rushed. That requires 
knowledge and mastery of the legal tools involved, something I am no 
help with, but I can offer this suggestion: Use any effort to rush you 
along as an important legal issue to be addressed – at length. 
Thoroughly. But most important of all, take every opportunity to 
reiterate to the judge your legitimate need to pursue full discovery 
during court session unless provided a continuance to do so. Recall each 
item of information you solicited by this protracted and thorough 
questioning which was beneficial to your client’s cause. Explain how 
doing less than what you are doing would be unethically abandoning your 
client’s interests. At every opportunity you have, repeat your 
reasonable request for a continuance to permit proper discovery.

What are some of the attorney skills which seem applicable in this 
desperate hold-off for survival but might be ill advised? Mostly it is 
the specialized application of the chicanery as opposed to the common 
wisdom of the legal profession. Let us take a certain demeanor as an 
example of a tactic to avoid, because it would be sheer dragging out of 
time as opposed to legitimately thorough questioning.

You might pause reflectively before every statement you make, however 
inane it may be. But the judge would know you are killing time, and that 
would belie the assertion you are only pursuing proper inquiry.

Courteously let your opponent, the ambushing expert and the court speak 
at length on any topic they wish. There is nothing like drafting the 
opposition into your cause! However, they would see through that quite 
quickly and might no longer take seriously your requests for legitimate 
discussion.

You might sincerely ask the court and opposing counsel to elucidate 
their points even further. You want so much to be ever so clear about 
what they are telling you. But that also could well backfire for the 
same reasons.

At each answer the witness gives, you might show your appreciation. Many 
attorneys have the annoying habit of repeating each answer before asking 
the next question. "Did you sneeze? You sneezed. Did you also cough? You 
did not cough. Did you…?" But now is not the time to adopt that annoying 
habit. You do not want to annoy the judge, you want to win his 
appreciation for your position. Also, don’t preface each question with 
that ubiquitous, pseudo-polite phrase, "May I ask you." I fantasize that 
some day I will reply to it for the record: "No! You may not ask me 
that." A judge would be especially and reasonably annoyed with the 
attorney who makes the courtesy very courteous and combines it with 
repetition of the answer, such as: "May I ask you about the year 1985 
when you said you had the good fortune of studying with Dr. Lot Z. 
Smartz, the world authority on I-dots. What particularly in that 
experience gave you special skill in authenticating signatures on leases 
to chicken hutches?"

One might invite the expert to brag some more, a thing experts are not 
the least bit loath to do: "Thank you, sir, for telling us how much you 
enjoyed that year. Is there anything else you wish to add to your 
answer?" On the other hand, if you focus the expert only on the topic 
you are pursuing, the judge would better appreciate that you are not 
wasting time but are employing it to the fullest.

One thing every attorney could adopt is the one thing which some 
attorneys seem to find hardest to do, even harder than being totally 
deferential to opposing counsel: Speak in a measured pace with well 
enunciated words. That would stretch out the time, but in a way the 
court reporter at least would be most appreciative of. An exceptionally 
good record of all that you are doing might well be needed later.

In all of this, avoid dead time. Be thorough as you never were thorough 
in your legal life, but do so not by stalling, but by keeping things 
moving, and moving, and moving, and always to good purpose.

Since Mr. Q.D. Expert’s c.v. was such a wealth of inspiration for 
detailed enquiry, think how nice it would be to have a copy of 
everything in his file for the case. Besides, asking for a copy of his 
file might permit a legitimate break to allow photocopying. Then every 
document with its every word will permit you to recommence the grilling 
you did on the c.v.

During the direct questioning of the testimony in chief, ask that 
unclear things be repeated, that answers be given in less a rush. You 
will need very detailed notes to permit very detailed cross-examination. 
Make every valid objection possible, but avoid the merely plausible and 
obstructive. If he hears nonsense objections, the judge will reasonably 
overrule 99 and 44/100 percent of them, and might throw a sanction your 
way to boot. All in all, look for items which lend themselves to the 
kind of close enquiry which "normal range of variation" did.

How to locate and send out for the cavalry is another topic, as is how 
to work together to fend off the ambush. In summary, contact the office 
at the first opportunity in order to have someone begin a serious search 
for a consulting expert and possibly a surrebuttal witness. Provident 
preparation against the moment of panicked need would be to have your 
own file of potential experts. Maybe take a book like "The Northern 
California Register of Experts and Consultants" and rate experts listed 
under each subject I through n. Then in a pinch your secretary knows who 
to call first. No need to say whom I recommend marking 1 under 
"Questioned Documents."

At least with the above you will have hopefully survived the day, and 
hopefully your skilll and forthrightness would have gained the judge’s 
approval for a continuance. But survival is the most basic human 
instinct; and, if you do not survive to fight another day, you will have 
for certain only gained your opponent’s approval. What possible comfort 
could that be?

_________________________________________________________________

*This article originally appeared in the February / March 1999 issue of 
_San Francisco_ _Attorney_ magazine, ©1999


         By: Marcel Matley E-mail: mmatley AT aol.com
         <mailto:mmatley AT aol.com>

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