The record is redolent with familiar dogmatic assertions by experts equally confident of contradictory contentions.
–Justice Felix Frankfurter (Railroad Comm’n v. Rowan & Nichols Oil Co., 310 U.S. 573, 583 (1940)).
Stephen Easton is a civil trial attorney, and civil trial attorneys encounter experts who are sloppy, biased, and wrong. Easton takes it personally—as an affront to our system of justice and a cancer on the search for truth. He’s motivated to expose those experts who shape their testimony to please the payer. “When the issue is expert testimony, I am a skeptic,” he tells us.
Easton’s work since becoming a University of Missouri law professor has focused on trial advocacy and experts — all of which we can use in our divorce and family law litigation processes. He has taken those endeavors and transformed them into 770 pages of step-by-step instructions on analyzing the expert, the science, the fact investigation, the assumptions, the methodology, the conclusions, and the evidentiary limitations. True to his word, “[t]he techniques outlined in this rather lengthy tome will help you construct your approach to attacking an adverse expert who is wrong.” We can apply this to divorce and family law litigation.
To be sure, Easton’s Attacking Adverse Experts also guides you through those cases, including divorce and family law cases, in which reasonable minds may differ and the competing experts have some legitimate foundation for their opinions. Easton will help you move through the analysis to find the strongest areas of attack possible — all of which you can apply to your divorce and family law practice. You will learn that even when the expert is very knowledgeable and articulate, you can frame an attack and present a compelling challenge to the opinion testimony. This is very useful for not only the discovery process of litigation, but also for the deposition process as well.
Easton’s analysis covers six phases:
- Gathering information about the expert and the testimony (6 chapters);
- Deposing the expert and what to do after the deposition (4 chapters);
- Framing a pretrial challenge to the testimony (2 chapters);
- “Launching” the attack in voir dire, opening statement and the case-in-chief (3 chapters);
- Cross examining the expert (6 chapters); and
- “Finishing the Job” in closing and on appeal (3 chapters).
As an example, Easton’s approach to showing that the adverse expert is wrong, takes the reader on a journey through:
Tying the Adverse Expert Down (a.k.a. Setting Him Up for Attack) by Identifying Critical, Incorrect Elements of the Expert’s Analysis and Establishing the Critical Nature of These Elements:
- (Flawed) Elements of the Expert’s Theory
- (Incorrect) Factual Assumptions
- (Mistaken) Application of Theory to Facts
Starting to Plant the “He Is Wrong!” Seeds in the Jury’s Mind:
- Establishing that the Adverse Expert’s Theory Is Incorrect:
- Establishing That the Adverse Expert Is Wrong About the Facts
- Establishing that the Adverse Expert Has Incorrectly Applied the Theory to the Facts.
This is a great reference book to add to your divorce and family law library. Attacking Adverse Experts meticulously guides you through the possible areas of attack, explains how to frame your challenge, and shows you how it can be done effectively — all the while doing what’s best for your divorce and family law clients. There are checklists, text boxes, samples and more. There is a chapter dedicated to applying Irving Younger’s Ten Commandments of Cross Examination to the adverse expert, which is packed full of helpful tips to use in your divorce and family law processes. And there is another chapter with a sample cross examination, presented in split-screen format: the cross examination outline in the left column and the verbatim Q & A in the right column.
As if 770 pages—and a treasure trove of practical ideas—were not enough to apply to your divorce and family law litigation methods, the book comes with a CD-ROM of checklists, outlines, legal citations, and charts documenting the law in every U.S. jurisdiction, and more. In addition, Easton has published an addendum on the ABA website discussing new Rule 502 (inadvertent disclosure) of the Federal Rules of Evidence and the proposed amendments to Rule 26 of the Federal Rules of Civil Procedure.
Use this book to craft better challenges to adverse experts during your divorce and family law litigation. While the record may be redolent with dogmatic assertions by equally confident experts, you can expose the weaknesses on the other side and persuade the trier-of-fact that your contentions are correct, which you can apply to both the mitigation and litigation facets of your divorce and family law firm.
Stephen D. Easton, ATTACKING ADVERSE EXPERTS (2008, American Bar Association). $165.00.