Adverse Expert Witness Cross Examination Part 3

In Overcome Fear Factor in Adverse Expert Cross-Examination, attorney Quentin Brogdon writes:

Courts in Texas look at six factors in assessing the reliability of an expert’s testimony: 1. the extent to which the expert’s theory can be tested; 2. the theory’s potential rate of error; 3. whether the theory has been or could be subjected to peer review or publication; 4. whether the underlying theory has been generally accepted as valid by the relevant scientific community; 5. the extent to which the theory relies on the subjective interpretation of the expert; and 6. the nonjudicial uses that have been made of the theory.

Ask the expert specific questions touching upon each of these areas. Use the language from the rules and the case law verbatim in questions such as, “What nonjudicial uses have been made of your theory?” “What can you tell us about your theory’s rate of error?” When the expert fails to give answers that clear the relevant hurdles, there is little room for argument in a later hearing challenging the expert.

Mr. Brogdon’s article appears in The Texas Lawyer, August 15, 2011.  Mr. Brogdon may be reached at

About Karen Olson

Information Professional with twenty years experience in legal, public record, and business research. Fifteen years law firm experience.

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