In my view the collateral cross examination of an expert,  done successfully, is tremendously more important than the subject matter cross examination. Jurors hear well qualified experts for  both sides  give conflicting opinions. Their process of evaluation is not clinically and objectively analyzing the reasoning offered or weighing  the evidence in support of the opinions. Typically they hear one side and it makes sense generally.  Then they hear another side and it too makes sense. They are generally left to other processes for evaluation.

A big part of that process is filtering what they see and hear through their unconscious version of the story they have made. In doing so, they ignore or rationalize or reject what is in conflict with their story  of  the case. In addition, they are left to deciding who to trust. Who seems the most  credible? Who seems to be someone they can trust to tell  them the truth? That means while they are filtering evidence they are also evaluating credibility. No matter how logical the reasoning and objectively persuasive the expert, the expert’s believability is dependent upon the impression for credibility. If  the expert is suspect for trustworthiness and credibility their opinions  are equally suspect.

That means to me the most important part  of  my cross examination of a  defense expert is not the subject matter, but rather undermining their credibility. Bias is the most important part of any cross examination,  so we need to be prepared for demonstrating it.

What follows is not a complete discovery deposition for  a collateral cross  examination, but  only a partial illustration of what I  mean.  It obviously does  not include any of  the subject  matter you would also include  in your discovery examination of the expert. It will illustrate, in part, what I mean about collateral cross  examination.


1. Explain how became involved in this case

(1)  Who contacted? Why?
(2)  Emails, phone etc?
(3)  Meeting

2.Advertise professional services as an expert witness – details
3. Subscribe or belong to any professional witness group offering your services
4. Any past connection defense lawyer

(1)  Know or connection with any lawyers in firm – social, professional – details
(2)  Ever reviewed cases for firm before – frequency, details

5. Any relationship or connection to defendant?

(1)  Professional societies or organizations
(2)  Social
(3)  Business relationships- professional, social or business
(4)  Same re defendant’s medical partners, clinic or associates


1.Past experience as retained expert:

(1)How many cases reviewed since starting as expert
(2)How many reports written
(3) How many depositions given
(4) How many times testified

2. How many times acted as an expert for defense
3. How many times acted as an expert for plaintiff
4.Percentage:  plaintiff vs defendant
5. Name the last case where you had an opinion there was malpractice – details
6. Name last case where you were hired by a plaintiff attorney – details
7. Have you ever testified against a health care provider in a malpractice suit?

(1)When, where, names & nature of case – details for each one
(2) Opinions offered

8. In what states have you acted as an expert
9.  Have a blog, website, Facebook or like? Details

1. What charge per hour for review
2.  What charge for deposition
3. What charge for testimony
4.  What other charges do you make
5. In addition, charge for travel, hotel and expenses?
6. Travel 1st class at expense of defendants?
7. Number of hours to date?
8. Future work planned?
9. Charges to date


1. What percentage of annual income is from work as expert witness
2. What were your total earnings as an expert witness last year? Previous?
3.What is your average annual income as expert over the last three years?
4.  What is the highest fee ever earned in one case?
5. Are you incorporated for your expert witness work?
6.  Who are the stockholders, officers?
7. Is income received paid to the corporation?

About Paul Luvera

Plaintiff trial lawyer for 50 years. Past President of the Inner Circle of Advocates & Washington State Trial Lawyers Association. Member American Board of Trial Advocates, American College of Trial Lawyers, International Academy, International Society of Barristers, member of the National Trial Lawyers Hall of Fame & speaker at Spence Trial College
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