subject: How to Successfully Deal with ‘Out-of-Context' Questions during Expert Witness Testimony [print this page] How to Successfully Deal with Out-of-Context' Questions during Expert Witness Testimony
As you know, your expert report lists the documents and data that you reviewed. Some of it is data that may have found its way into your analyses and opinions while other content may have seemed inconsequential at the time. You may have read that material more lightly.
It will not matter in court whether you read it in depth or scanned it lightly. If your expert report says that you read it, then the opposing attorney can legitimately ask you any questions he likes about it. You may need to refresh your memory about a document or previous testimony that an lawyer references in a question. Be aware that he may be using the facts out of context.
When asked a question that quotes from another document, especially if you have said that you previously read it, you should request to see the document at that moment in the trial. Ask for the particular page that contains the quotation, and then take your time finding the place in the referenced document.
Before saying that you have found the place with the quotation, casually look at the context of the discussion that leads just before and follows just after the referenced quotation. If you read the document and roughly remember what it was addressing, this quick scan of context will be enough for you to identify the contextual meaning of the quotation. If possible, think through the reason for the question and why the quotation was given to you out of context. You have to understand how the lawyer wants to use this out of context question to help his side of the case.
If a quotation were straightforward, the opposing attorney could use his own expert to agree with it. If it can be interpreted in different ways, his attempt to use the quotation in an out-of-context way is an attempt to use you to help him. by and large, when you look at the context of such a question, look for conditions that were applied in the text around the quotation. Only if those conditions are true would the quotation be valid. You must find or understand the constraints, then point out to the jury why they are different from the facts in this case.
This out-of-context trap can also occur when an lawyer reads a passage from one of your own books or articles or even transcripts from a previous deposition of yours. Always ask to see the document or book from which any quotation is taken.
If you are asked a question about something in a document, ask to see the document again at that moment in the trial.
