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When United States Supreme Court nominees testify before the Senate at their confirmation hearings the press is always talking about ‘the paper trail’. What did the nominee write either as an academic or jurist and what does that tell us about how he/she will rule? It has often been said that a candidate is better off without a paper trail. In that way, there is less material to impeach the witness.
It is not all that different in the case of expert cross-examination. Experts have published and/or rendered opinions on a whole host of areas and in a whole host of forums. That material is discoverable. That material can form the basis of very effective cross-examination, for if the expert took a different opinion in prior testimony that is a very significant fact for a jury to hear. As I discussed in a recent blog on expert witnesses and their compensation, judges afford cross-examiners wide latitude on the payment that an expert receives for testifying, and not just for the case at hand. Consequently, if an expert has contradicted himself, what better way to suggest that the opinion, now 180 degree opposite from what it was in a previous case, is the product of financial motive.
With the advent of the internet and with the willingness of lawyers and others to share information there is a fertile ground to uncover a paper trail.
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