How Attorneys Use 'Learned Treatises' to Uncover Contradictions during Expert Testimony

Attorneys will also look for apparent contradictions between your testimony and statements

that may appear in textbooks that are authoritative in your experience. The attorneys may use journal publications that are respected and professional, as well as published articles by other recognized experts in your field. This approach to undermining your testimony is called the 'Learned treatise' technique. This method relies initial on establishing a published work as a 'reliable authority.' If that is done by your admission, then any relevant portions of that work can be read into the record as substantive and contradicting evidence.

Two things could constitute your own admission.' You may admit during questioning that the publication is a reliable authority. Or, you may have quoted from or referred in your earlier testimony to a passage from the publication. Either of these mean that other sections from this authoritative text' can possibly be used to contradict your testimony or support the opposing expert's testimony. Either way, you need to be up-to-date on your readings of learned treatises in your field. You should have done your own research before trial to see what others may have written about the subject in which you are testifying.

You should almost always refuse to validate any other expert or publication as authoritative in your field!

If the opposing attorney asks you to confirm for him that a particular author, publication, book, or other expert, is an authority in your field, only say "Yes" if you know everything ever written or spoken by that authority. Otherwise, hedge your answer with an honest statement of usefulness of the publication, or unfamiliarity with the particular work or expert.

Ironically, you may be the very expert whose writings are quoted to undermine your own opinion in the case. If you have written articles or books that speak to the same subject as the current case, be aware of any earlier statements in writing that contradict current statements or positions you are taking. If discrepancies or contradictions appear, you should have an explanation prepared for those differences.

The same is true if you have testified in any earlier cases in which your deposition or trial testimony is a matter of public record. You will have to describe any previous statements that may run counter to current opinions, if they are discovered and brought up to you during the trial. You ought to know if this is possible, and you should have some great answers ready. As a valid explanation, for example, the facts referred to in a previous publication could be different from the facts in this particular case. Also, the state of knowledge in your discipline may have expanded since the previous publication. Current opinions may now run contrary to earlier industry opinions because of this new and greater knowledge.

How Attorneys Use 'Learned Treatises' to Uncover Contradictions during Expert Testimony

By: Judd Robbins

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