To Litigation Chairs, Litigation Partners, |
Attacking a “Mt. Olympus” Expert’s |
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Format … Part 1: at their convenience, each attorney watches a set of 3 videos (recorded September 2023); Part 2: a LIVE-ONLY Zoom broadcast to all attorneys (program not recorded)
Teaching points … see agendas for Part 1 & Part 2 below
Teaching-time … Part 1: 190 minutes; Part 2: 190 minutes, plus question-time
Question-time … Lots available (right before, during, & right after Part 2), but questions have always been quite rare because ALL the teaching points are correct & clearly presented.
Target audience … from newbies to premier litigators [re the latter, see “Blunt Truths” at upper left corner of this page.]
Written materials … 75 pages, made available with the Part 1 videos
CLE accreditation … the law firm’s responsibility
Teaching fee … $3,500
– It is unlikely that many of your litigators* take HIGH-quality adverse depositions … yet, it’s the quality of the “competing adverse depositions” (your side’s vs. your opponent’s) that most dramatically determines case outcome: settlement or trial.
– No litigator – not even “the Michael Jordan of the courtroom“* – takes HIGH-quality adverse depositions without first mastering the logic of deposition cross-examination … and mastering the dozens of RULES that flow from it.
– Few law firms teach this logic; instead, they typically offer (expensive? / multi-day?) entry-level depo “skills” training re (a) how to interact with the witness (giving admonitions, building rapport, and gathering info … the latter “learned” through a few pretend sessions of “who – what – when – where – why – how – anything else?”); (b) how to interact with the opposing attorney (dealing with objections and obstructionism); (c) how to interact with the court reporter (making a record and managing exhibits and time); and (d) how to interact with technology in the age of Zoom. Sure, all nice stuff for newbies to know, but woefully inadequate for crafting case-changing, ready-to-reenact-at-trial deposition Q&A of a fact-witness or an expert who wants your client to lose the case … and is quite prepared to commit perjury in furtherance of that goal.
– When depo training maxes out at entry-level “skills,” mediocre adverse depositions abound.
– My programs teach the crucial discipline of deposition cross-examination. [See 5,000+ rave Reviews from newbies and senior litigators.]
* I’ve been in awe of BRILLIANT David Boies’s legal career since 1998, and remain so. In 2009, I created a 6.5 hour CLE program devoted exclusively to the analysis of Boies’s universally-lauded, 3-day deposition of Bill Gates in the US vs. Microsoft antitrust case … called it: “The Anatomy of A ‘Superstar’ Deposition.” Taught it around the country to several thousand litigators. At every presentation, I (eventually) revealed to the audience my judgment re the quality of that depo: “It’s an embarrassment to the art of cross-examination.” No attendee ever disagreed, nor could they … cuz it ain’t a close call.
Point: Given that “brilliant and tireless … the greatest trial lawyer alive” David Boies failed [yes, failed!] to take a HIGH-quality depo of the most important adverse witness in the biggest antitrust case since the breakup of Standard Oil (1911), the vast number of less renowned litigators have undoubtedly failed in their important depositions … and will continue to fail for the rest of their careers … until they learn the logic (& RULES) of deposition cross-examination.
The adverse expert is typically the most dangerous witness and, at the same time, the most vulnerable. Most dangerous because the expert testifies cloaked in the mantle of the “unbiased scientist”; thus their testimony – if accepted by the jury – can determine a major issue, maybe the entire case. Yet most vulnerable because, unlike the fact witness who must defend only their first-hand observations, the expert witness must defend their testimony from attacks on a dozen fronts.
As seasoned litigators from all areas of practice have attested (see Reviews), this presentation explains the one-and-only logical method with which to effectively attack the (purported) scientific merits of any adverse expert’s opinion … no matter the field of (purported) expertise. Never again be the slightest intimidated when cross-examining any expert, even a “Mt. Olympus” one.
Part 1 Agenda
For 7 days prior to the live-only presentation of Part 2, each attorney will have “watch-at-their-convenience” access to 3+ hours of videos (recorded September 2023) teach the below.
- “Skepticism is the highest of duties”
- Trial cross-X vs. deposition cross-X
- Intro of Dr. Michael Baden, a “Mt. Olympus” expert
– “Independent finder of scientific facts & truths” - 2 categories of attack vs. expert’s opinion
– Pedestal attacks - When attacks against the expert should be played at deposition
- The structure of every opinion: O = R + 2F
- End point opinions
- Subordinate opinions
- Bedrock findings & bedrock assumptions
- Cross-examiner’s critical listening skills
– Test re same - Categories of expert opinions:
– Cause
– Effect
– Comparison
– Measurement”
– Insufficient info - 2 must-be-asked questions
- Common names of rules
– standard (statute)
– formula
– definition
– statistic
– expert generalization
– non-expert generalization
– causal relationship
– mutual “exclusivity”
– hierarchy of values
– Probably a duck” - X & Y factors defined
- Scientific rules & Sir Francis Bacon
- Experiential rules & the “you-gotta-trust-me” expert
- Attacking the scope of expert’s expertise
- Non-expert rules
Part 2 Agenda
A live-only (i.e., not recorded) Zoom presentation: 3.25 to 4+ hours teaching time, exclusive of breaks & unlimited question time. All questions re Part 1 addressed before Part 2 begins.
- Understanding expert’s weighing process
– Conclusive, probable, or plausible - Incredibly important – and easy to master – techniques
– Enumeration
– Ranking - Attacks vs. expert’s claims re X factors
- The “certainty scale” & 2 archetypal arguments
- Sources of assumptions
– Presumptively authoritative
– Independent ad hoc
– Non-expert common knowledge
– Expert’s first-hand uncommon experience
– opposing litigation team
– party or ally of party - Potential flaws re the expert’s assumption
– Perception
– Understanding
– Skill re tools & methods
– Memory
– Inconsistency (internal or external)
– Motive - Attacks vs expert’s findings derived through expert means
– Authority for means expert used
– Unanimity vs. a scientific debate
– Better means … exist & available
– Corroboration re adherence to mean’s protocol
– Mean’s inherent risk of uncertain results
– Expert’s verifiable error rate - Attacking expert’s findings derived through non-expert means
- Expert’s 3 – and only 3 – attacks vs. Y factors
– Relevance
– Not established
– Weight - Attacking expert’s double standard re case/career
- The perfection line of questioning
– CE to expert: “Help me screw you!”