Are You Ready for Cross Examination?
They say that an expert witness testimony either breaks or makes a case. An expert witness is an individual who has spent years and years of education, training, and practice which makes him credible to assist the court in finding the truth.
But if you're an expert witness and about to testify before a judge or jury, you might want to learn what "learned treatise" is.
There's a story about an expert witness, an accountant, who was tasked to give his expert opinion about a document relevant to an insurance fraud case. He did what he was asked to do, took the witness stand, and testified in court. He was confident about his testimony, and thought that the case was considered to be closed.
But he was wrong. When it was time for the other party for his cross-examination, the expert witness wished he did not take the stand. He was embarrassed by the lawyer using the published works of a highly respectable author. The accountant's statements were rebutted under the "learned treatise" rule.
Learned Treatise, What is This?
What is "learned treatise"?
After an expert witness takes the stand and gives his testimony, the other party cross examines him with the goal of convincing the court that the witness is NOT credible enough. The lawyer presents any published work by a highly respectable and reputable author. If there are conflicting statements between the witness and the author, the expert witness's credibility may go down the drain -- just like what happened to the accountant mentioned above.
But it is not as simple as that.
The rule states that in order for the author's publication to be "authoritative" in court, it must be recognized by either the court or the expert. So if the expert does not recognize the publication, which is often the case, the cross-examiner will have to rely on other tactics to prove the expertise of the publication.
What are these strategies?
First, he may appeal to the judge or jury who would render the publication to be authoritative. This strategy, however, is unlikely to work. There are thousands of specializations as far as jobs are concerned, and there are thousands of people who are considered authority in these specializations. A judge or the jury may have difficulty recognizing who are the reputable people in one particular specialization.
Another strategy is to find other witnesses who will establish the authoritativeness of the publication. This often works because the witnesses have the same expertise as the one being cross-examined.
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