Illustration by Doug Thompson

If you’re litigating an inheritance case, chances are someone’s going to allege the person whose wealth is being disputed either lacked testamentary capacity and/or was the victim of undue influence. In both instances the issue of cognitive capacity is front and center, which means you’re probably in for some kind of battle of the experts.

Effectively cross examining expert witnesses doesn’t happen by accident; you need to have a strategy going in. But you don’t have to reinvent the wheel. There’s lots of good advice floating around out there on how to do this right. So where to turn?

Over the years I’ve found the ABA’s Litigation Journal to be a rich source of solid practical advice (here’s a favorite). So when I ran across an excellent article in the Fall 2017 issue entitled Effective Strategies for Cross-Examining an Expert Witness by veteran litigators Thomas C. O’brien and David D. O’brien, I made sure to hold on to it. Here’s an excerpt:

The truth is that most attorneys—even experienced advocates— lose ground when cross-examining an expert. This problem frequently boils down to poor strategy. Too often, lawyers who are prepared and know how to cross-examine fail because they pursue the wrong tack. They delude themselves into believing that they can actually win an argument with an expert on the subject matter of the expert’s opinion. This rarely succeeds.

However, there are ways to gain ground without launching a full frontal assault in the expert’s field of knowledge. With the right approach, cross-examination of an expert is not only a survivable event but also an opportunity to advance your case and score points with the jury. The following cross-examination strategies present both a low risk of danger and high potential for reward. While none guarantee success, they may significantly increase your odds of confronting an expert witness and living to tell the tale.

And here’s a list of the different strategies described in the article:

  1. The Résumé Attack: Challenging an Expert’s Credentials
  2. The Flagpole Strategy: Using the Expert to Advance Favorable Facts
  3. The Procedural Challenge: Identifying Departures from Established Protocol
  4. The Knowledge Test: Highlighting an Expert’s Lack of Information
  5. The Hired Gun Attack: Showing Bias, Interest, or Prejudice
  6. The House of Cards Strategy: Undermining an Expert’s Key Assumptions
  7. The Go-for-Broke Strategy: Mounting a Direct Attack

Good stuff, and a worthy addition to any litigator’s toolbox.