The young litigator's nightmare was always the same. He was in medieval Europe, ready to engage in a sword fight with the expert swordsman representing his arch rival. After countless hours of preparation, he felt confident that he would be able to hold his own against the swordsman. But when the swordsman drew his lengthy rapier from its sheath, the young attorney pulled only a short dagger from his scabbard. Realizing that he was doomed to defeat, he tossed his dagger into the air and ran from the scene with the laughter of the onlookers ringing in his ears.
The young litigator needed no dream analyst to tell him the nightmare's symbolism. He knew that the sword fight represented cross-examination and that his swordsman opponent was simply an expert witness. As hard as he practiced and studied and researched, he never felt comfortable crossexamining his opponent's expert about the expert's field of expertise. He might as well admit his failure now and become a tax attorney, he thought.
Fear of expert witnesses can indeed be disabling. With the increase in litigation about complex business transactions, products liability, and professional malpractice, expert testimony continues to become more important. The modern litigator must learn to deal effectively with opposing experts or be faced with the embarrassment of his worst nightmares.
Handling the opponent's expert has become more difficult because the rules of evidence have been liberalized over the years, while the rules of discovery recently have been restricted.
Litig., Spring 1988, at 17-20, 56-57
Scholarly Commons Citation
Rothstein, Paul F., "The Collision Between New Discovery Amendments and Expert Testimony Rules" (1988). Georgetown Law Faculty Publications and Other Works. Paper 711.