During a 32 year history in forensic economics, we have observed a number of effective techniques for cross examining economic experts. We offer four tips here.
Paint the Picture You Want to See
Effective cross-examination occurs when the attorney paints their picture, not the one of the opposing expert. In most P.I. matters economist assumptions depend on underlying opinions of other experts. Change that scenario—either through hypotheticals or own expert opinions—and paint an entirely different picture. In short, use the opposing economist as a calculator to establish the losses supported by the defendant or plaintiff.
The Chaos Strategy
An opposing economist's opinions may involve calculations and assumptions that are so technical, extensive, and even overwhelming, so that an effective strategy may be to further the chaos. A few clever questions that cause the opposing economist to answer with convoluted, unclear answers will further the confusion. When a jury is confused by an expert, then they often dismiss the opinions, and seeds of doubt are sown.
Keep it Simple
Some of the most effective cross-examination we have experienced has involved five minutes of questions. When they are pointed, and based on hypotheticals or prior testimony, they can force dramatic changes of opinion. This strategy is simple, and can be brutally effective: ask five questions that significantly change the expert's opinion, then take a seat. It may be the moment that sticks with the jury.
Stay Out of the Weeds
Unless the opposing economist has made a notable error in calculations or assumptions, or the expert is snippy and unlikable, we have found that it is best not to challenge the actual mathematics used in calculations. The obvious exception here is the economist's choice of discount rate. It has a significant influence on calculations, and if the expert's reasoning is flawed, then a successful challenge can be effective.
If one is putting together a case for litigation, try some of these tips for effective cross-examination. If there is any way we can help, let us know.
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