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Title: Expert Rules: 100 (and more) Points You Need to Know About Expert Witnesses by David M. Malone, Paul J. Zwier ISBN: 1-55681-721-5 Publisher: National Institute for Trial Advocacy Pub. Date: 15 February, 2001 Format: Paperback List Price(USD): $24.95

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Average Customer Rating: 4 (1 review)

Rating: 4
Summary: Expert Rules....Rules!
Comment: EXPERT RULES was written with the attorney audience in mind. And, it would appear, if an attorney is preparing for a trial in which an expert will be used for the first time, this book would provide an excellent outline. However, I purchased it because a large portion of my consulting practice is centered around expert services including expert testimony. For the expert, this book is a gem.

The primary text is a short 81 pages but authors Malone (who has written other excellent books in this field) and Zwier pack an incredible amount of advice and procedure in this short space. The appendices are reserved for selected passages from the Federal Rules of Evidence (which directly apply to all identified experts) and the Federal Rules of Civil Procedure (identifies the protocol for experts in civil litigation).

Malone and Zwier lay out their treatise in the following fashion: 1) Finding an Expert, 2) Feeding an Expert (communications, discovery, etc.), 3) Expert Reports, 4) Non-Deposition Discovery about an Expert, 5) Preparing an Expert to Be Disposed (excellent insight to trial attorney tactics), 6) Deposing Expert Witnesses, 7) Admissibility of Expert Testimony, 8) Direct Examination of an Expert, 9) Constructive Cross-Examination of an Expert, 10) Destructive Cross-Examination of an Expert, 11) Experts, Summary Exhibits, Visual Aids, and Demonstrations.

As you can see, the authors cover quite a bit of ground even though the book is succinct. Reading from an expert point-of-view, chapters 8 and 9 were of great interest to me as they blazed the path of the typical 'bait-and-switch' most attorneys pull on cross-examination. Constructive cross is the art of agreement; that is, getting the expert to agree with your positions (the attorney cross-examining the expert) and your expert's (the opposing expert) opinions. In this phase of the cross, the attorney will do everything necessary to ingratiate himself to the expert in an attempt to slide the expert into a sense of security. Then, as happens so many times in trials, the attorney immediately slips into the Destructive phase of the cross, attacking the expert's qualifications, previous trial testimony, lack of experience relative to the issue at hand, and other maladies affecting an expert from time-to-time. Just understanding these two basic concepts will aid any expert in succeeding during testimony.

The upshot is if an expert understands the procedure, the expert can prepare himself for these tactics and strategies. To a certain degree, it is like peeking into the opposing team's playbook. Consequently, EXPERT RULES, while written with the attorney in mind, is an excellent book for testifying experts as insight into the unknown when one places his hand on the Bible and responds, "I do," after being asked if you promise to tell the truth.

My only criticism of this book is the underused practice of cross-referencing text to the Federal Rules of Evidence and Civil Procedure. Understanding these rules and knowing them "at the drop of a hat" give the expert an advantage when sitting in the witness chair. I can't blame the authors for this however, as most experts aren't interested in the process as much as they are their own product. An error in judgment, in my opinion, but one many survive. Regardless, I highly recommend this book to ANY expert preparing for deposition and/or trial testimony.

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