What to Expect from Expert Cross-Examination: Changes to Texas Rules of Civil Procedure Rule 195
Cross-examination is one of the most important stages for a trial involving an expert witness, as the testimony presented by an expert during this stage can influence both judge and jury opinions based on the expert’s specialized and valued perspective. Because of this, it is imperative that trial lawyers thoroughly research and prepare long before the actual expert cross-examination, to ensure their line of questioning is as air-tight as possible.
But how trial lawyers will prep—and which documents and facts will be available to them regarding expert witnesses—has changed. At the beginning of the year, several pertinent changes were enacted to the Texas Rules of Civil Procedure, specifically to Rule 195, that affect what information about expert witnesses is available during discovery, potentially changing the way in which trial lawyers will approach cross-examining expert witnesses in Texas state court cases moving forward.
Amended Rule 195 Changes
As outlined by the amended rules in Texas, parties now must disclose three new categories of information for testifying experts, based on the Federal Rule of Civil Procedure 26(a)(2)(B):
- expert qualifications, including all publications authored in the last 10 years, their resume, and bibliography,
- except for attorneys testifying about attorney fees, a list of all cases in which, during the previous four years, the expert has testified at trial or in a deposition, and
- a statement of the compensation to be paid for the expert’s study and testimony in the case.
Additionally, the communications and draft reports between the hiring attorney and the expert are protected, except to the extent that the communications relate to compensation for the expert’s study or testimony, identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed, or identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.
As such, cross-examining attorneys will no longer be able to rely on studying the communications between the hiring attorney and expert, and will have to wait for the tangible reports to be produced at the request of the court rather than being able to review draft reports. Because of this, cross-examining attorneys will need to pivot their tactics to operate within the new requirements.
Changes to Cross-Examination Tactics
Due to the changes implemented, attorneys planning their cross-examinations for experts will likely shift their focus to more heavily favor the information most readily available during the discovery process.
The history of published materials and opinions from experts will likely see increased scrutiny, as these materials can be used to cast doubt on the scope of an expert’s testimony based on how an expert conducted their research or interpreted peer-reviewed materials. Sowing doubt in the expert’s qualifications in this way — especially if presented in the expert’s own words — is an effective tactic for getting an expert stricken from the case by the judge on the grounds that the expert lacks the necessary qualifications.
As expert opinions and testimony will still prove invaluable to the strength and validity of a case, it is more important than ever to have a trusted, qualified team facilitating the deadlines and management for the entire legal process. The team at Juris Medicus employs an operating system that protects our client’s time and deadlines with a repeatable, seamless process. Part of this process includes the chronological summarization of all pertinent records into a neat, efficient outline for medical experts and clients to review, helping experts and clients remain organized, coordinated, and on track.
If you are in search of a leading medical experts and legal services firm with dependable solutions that are client-focused, reach out to the team at Juris Medicus at 210-826-6767, or contact us right from your desktop or mobile browser.