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Cross Examination of Document Examiners
and other Experts
Michael L. Robertson is a Forensic Document Examiner, court qualified as an expert witness in over 40 judicial venues and is a retired Special Agent of the United States Secret Service. He has been serving in private practice since 1988.
In addition to forensic document examination (including that regarding medical malpractice), Michael is often retained as a cross examination consultant by counsel to review other experts' opinions and evaluate their reports for strengths and weaknesses. He prepares deposition and cross examination questions for use on, but not limited to, police detectives, government agents and experts in a variety of fields. Michael also assesses the potential for exaggeration in other experts' reports and validates the claims of the professional organizations to which they belong.
A Guide to Cross Examination - by Michael L. Robertson
I believe it is important for counsel to have an understanding about questioned document examiners’ methodology, standards for forming an opinion, strengths and weaknesses in their curriculum vitae and how, as opposing counsel, to interpret their opinion. In addition, it is helpful to follow a specific line of questioning in order to identify those issues that will help minimize or neutralize the opposing opinion.
However, in those cases where the opinion is based on concrete facts, perhaps supported by other testimony or evidence, even a substantial cross-examination may not help your case. You, the attorney, are the best judge of that possibility. There are excellent document examiners who are highly qualified in their trade. This paper is directed at what I consider a large number of document examiners who do not meet the threshold of competence.
My personal experience in many cases has found the opposing examiner’s opinion was (1) not following good protocol, (2) basing the opinion on erroneous conclusions, (3) couching the opinion in buzz words to make it sound stronger than it actually is, and/or (4) not telling the truth, either through ignorance or with intent.
I can assist counsel in several areas: (1) critique the opinion, (2) identify weaknesses and strengths of the opinion and the document examiner, (3) provide tailored questions for deposition of the examiner and (4) provide tailored questions based upon the deposition for cross examination.
Generally, here are the other subjects that I can address to help in your case against the opposing expert:
1. BACKGROUND and TRAINING of DOCUMENT EXAMINERS and HANDWRITING EXPERTS
This is an important topic, although I believe some attorneys concentrate too much on this and miss other key areas of greater value, i.e. the opinion for example. I have categories for various levels of expertise, which can aid in your deposing these experts as well as specific lines of questions to obtain relevant “Yes” and “No” answers that are frequently hard to elicit.
2. ANALYZING OTHER HANDWRITING EXPERTS' REPORTS
Some reports are relatively straight forward and easy to understand. Others are easy to understand but may not be as straight forward as it appears to a lay person. Interpreting a report prior to deposition and/or trial can be an important tool for the opposing counsel.
3. DEPOSITION of a DOCUMENT EXAMINER
Having been deposed dozens of times, I can generally tell within a few minutes if opposing counsel (1) possesses any personal knowledge about my field, (2) is simply reading questions prepared by his/her examiner or (3) is knowledgeable about document examinations. I know attorneys who have great knowledge about the medical field and others who are experts in fields such as electrical engineering and metal fatigue. An attorney deposing a document expert can achieve a working knowledge as it relates to the case at hand within a few hours with some direction. In my experience of being deposed, too much time is spent on certain subjects and not enough on others. There are many times that fewer questions are asked about my opinion than relatively unimportant subjects. Designing a strong line of questions, organized in the best manner to elicit accurate answers coupled with the attorney’s research in the field can produce much better results than average.
4. CROSS EXAMINATION of a DOCUMENT EXAMINER
If I design the initial questions and protocol for the deposition, the questions for cross examination may take an entirely different track based on the deposition responses. Another key to be aware of during direct exam is the wording to the answers given by the witness. There are occasions when the expert witness, for a variety of reasons, may couch his/her opinion on the stand. I can prepare a checklist/worksheet to use while the expert is testifying on direct to assist in your cross exam questions.
There are instances where an attorney may choose not to have an expert but rather formulate a strong case against the opposing expert and substantially dilute that opinion on cross examination. There are circumstances where this decision may benefit your client more than having a battle of the experts.
Regardless of the circumstances of your case, feel free to call (1-800-499-1287) to discuss it. If I cannot assist you with a particular issue, I will try to refer you to someone who may be of assistance. My cases are divided between defense and plaintiff counsel, for and opposing insurance companies, medical plaintiffs and doctor/hospital defendants.
Fee Schedule for Deposition Assistance, Trial Preparation, and Cross Examination
It is best if we discuss your specific case and what you need done. You will be provided with an exact quote for the cost of services before any work is begun. You can contact me by calling 1-800-499-1287 or through visiting the Contact Us page.
Fees can vary on a case by case basis. Here are some approximate costs:
1) Review the report of the expert along with the same documents she or he had for comparison purposes, provide a background on the experts' credentials, compose a list of questions covering (a) background and credentials, (b) definition of terms relevant to your case used by the expert, (c) critique the report to include the areas of protocol, equipment used, weak/strong points of the actual opinion and (d) any ancillary topics that may impact on the expert's opinion (case by case). If your case is a basic one or two questioned documents along with adequate known exemplars, my fee ranges from $900.00 to $1,500.00.
2) Complete #1 and conduct my own examination of the case to include my written report. In this instance I become your expert and also critique the opposing expert. In cases where the document examination is critical to the success of the case, I can serve as your second opinion expert if you have already retained an expert. This fee averages from $1,800.00 to $2,700.00.
I can prepare a PowerPoint presentation for your use against the opposing expert including a text outline illustrating your points. The presentation utilizes the opposing expert's exhibits for impeachment purposes when possible. The average fee is $600.00.
Cases involving numerous questioned documents, multiple "suspects" and/or voluminous known documents to review are quoted on a case by case basis.
Other litigation support in complex cases is quoted on a case by case basis.
