<b><i>Practice Tip:</i></b> Cross-Examination Using Learned Treatises

(B) the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice.”

One recent commentator, who will go unnamed, summed up application of FRE 803(18) this way: “Most commonly, medical literature is used in cross-examination of an outside medical expert hired to provide expert opinion and testimony' . An expert may be cross-examined by the use of a learned treatise if he/she admits that the treatise is a recognized and standard authority on the subject involved.”

This description of FRE 803(18) reflects the commonly held misconception that a witness on the stand cannot be impeached with a learned treatise unless he or she admits it is “authoritative.” But the rule is actually much more lenient, providing three different ways a learned treatise can be used without being snagged on the hearsay rule:

1. acknowledgement by the witness on the stand;
2. acknowledgement by another expert; and
3. judicial notice.

Virtually every scientific, medical or technical field comes with its own body of literature useful for cross-examination purposes. The trick is to find the right publication(s) ' those relevant to the dispute and helpful to the offering party. Not too long ago, finding the right publications required multiple trips to engineering, medical or business libraries for raw material. Today, of course, much of this legwork can be done on the Internet.

With useful literature in hand, the practitioner must find the best way to meet the requirements of FRE 803(18).

Witness on the Stand

Professional experts, those who regularly engage in forensic investigations and testify in civil proceedings, are wary of pronouncing any book or publication “authoritative.” Not surprisingly, eliciting testimony of this kind from an adverse witness can be a long shot, especially if the attempt occurs in open court. The best way to obtain a witness's acknowledgment, therefore, is during a pre-trial deposition. If the witness tries to recant when testifying at trial, he can be impeached twice ' once with his deposition testimony and again with the learned treatise.

Are professional experts any less wary of the “authoritative source” trap when testifying in discovery? No, but a deposition questioner has more options than a questioner at trial. The most effective discovery depositions consist of multiple cross-examination ploys ' many of which may fail to score any points. But a few usually succeed. At trial, all the failed ploys are discarded in favor of the one or two that worked. This technique works for learned treatises, too. A deposition questioner may fail to obtain “reliable authority” testimony on a half dozen different publications, but succeed with one. That's the one to use at trial.

Another Expert

Who is most likely to recognize your favorite treatise as a “reliable authority”? Your own expert, of course. Plaintiffs have the burden of persuasion, so plaintiffs go first. And going first is an advantage in many ways, including the opportunity to elicit FRE 803(18) foundation testimony. Careful witness preparation can generate both credible opinion testimony and credible bolstering of that testimony from a big, fat textbook. Jurors respond to the visual of an expert witness reading from an authoritative text, just as they respond to the visual of using the same text later on to impeach an adverse witness.

Judicial Notice

Cross-examining with a learned treatise bearing the imprimatur of judicial notice is as good as it gets. But again, unless a questioner knows the answer in advance, trial is not the time to ask a judge to grant judicial notice. It's simply too risky. A request for judicial notice should be made during the final pre-trial conference.

The universe of authoritative literature can be huge, but the body of literature likely to garner judicial notice may be quite small. Judges not educated in medicine or science, for example, do not know the authoritative resources in these disciplines. Except for a few exceptionally learned jurists schooled, for example, in economics or social science, most judges possess the same education as the lawyers who appear in their courtrooms. For this reason, convincing a federal judge to grant judicial notice to a publication on, say, mental health, can be daunting.

Fortunately, there is a comprehensive treatise on a wide range of subjects with a very high likelihood of being authenticated through judicial notice: The Reference Manual on Scientific Evidence (3d Edition) published by the Federal Judicial Center. The Reference Manual features an introduction by U.S. Supreme Court Justice Stephen Breyer and more than a dozen pithy chapters authored by recognized experts. Subjects covered by The Reference Manual include science, statistics, epidemiology, economic damages, engineering, medicine, toxicology, and ' yes ' even mental health.

Imagine your next cross-examination of an adverse expert going something like this: “Your Honor, I want to ask this witness a few questions using the Federal Judicial Center's Reference Manual on Scientific Evidence. Will the Court take judicial notice that this book is a reliable authority?”

“Yes, counsel. You may proceed.”

“Now, then, Mr. Witness ' “

John L. Tate, a member of Stites & Harbison PLLC, is a member of this newsletter's Board of Editors, and a Fellow of the American College of Trial Lawyers.

Anecdotal evidence suggests that a once common cross-examination technique ' impeachment with so-called “learned treatises” ' may be passing out of favor. If so, the trend should be reversed. Using a learned treatise on an opposing expert is, at a minimum, an effective and efficient way to undermine his or her credibility. And in the right hands, cross-examination using a learned treatise can also build affirmative evidence supporting the cross-examiner's case-in-chief.

The technique is rooted in Federal Rules of Evidence (FRE) 803(18), the hearsay exception for “learned treatises, periodicals, or pamphlets.” The rule provides: “A statement contained in a treatise, periodical, or pamphlet [is useable as evidence] if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B) the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice.”

One recent commentator, who will go unnamed, summed up application of FRE 803(18) this way: “Most commonly, medical literature is used in cross-examination of an outside medical expert hired to provide expert opinion and testimony' . An expert may be cross-examined by the use of a learned treatise if he/she admits that the treatise is a recognized and standard authority on the subject involved.”

This description of FRE 803(18) reflects the commonly held misconception that a witness on the stand cannot be impeached with a learned treatise unless he or she admits it is “authoritative.” But the rule is actually much more lenient, providing three different ways a learned treatise can be used without being snagged on the hearsay rule:

1. acknowledgement by the witness on the stand;
2. acknowledgement by another expert; and
3. judicial notice.

Virtually every scientific, medical or technical field comes with its own body of literature useful for cross-examination purposes. The trick is to find the right publication(s) ' those relevant to the dispute and helpful to the offering party. Not too long ago, finding the right publications required multiple trips to engineering, medical or business libraries for raw material. Today, of course, much of this legwork can be done on the Internet.

With useful literature in hand, the practitioner must find the best way to meet the requirements of FRE 803(18).

Witness on the Stand

Professional experts, those who regularly engage in forensic investigations and testify in civil proceedings, are wary of pronouncing any book or publication “authoritative.” Not surprisingly, eliciting testimony of this kind from an adverse witness can be a long shot, especially if the attempt occurs in open court. The best way to obtain a witness's acknowledgment, therefore, is during a pre-trial deposition. If the witness tries to recant when testifying at trial, he can be impeached twice ' once with his deposition testimony and again with the learned treatise.

Are professional experts any less wary of the “authoritative source” trap when testifying in discovery? No, but a deposition questioner has more options than a questioner at trial. The most effective discovery depositions consist of multiple cross-examination ploys ' many of which may fail to score any points. But a few usually succeed. At trial, all the failed ploys are discarded in favor of the one or two that worked. This technique works for learned treatises, too. A deposition questioner may fail to obtain “reliable authority” testimony on a half dozen different publications, but succeed with one. That's the one to use at trial.

Another Expert

Who is most likely to recognize your favorite treatise as a “reliable authority”? Your own expert, of course. Plaintiffs have the burden of persuasion, so plaintiffs go first. And going first is an advantage in many ways, including the opportunity to elicit FRE 803(18) foundation testimony. Careful witness preparation can generate both credible opinion testimony and credible bolstering of that testimony from a big, fat textbook. Jurors respond to the visual of an expert witness reading from an authoritative text, just as they respond to the visual of using the same text later on to impeach an adverse witness.

Judicial Notice

Cross-examining with a learned treatise bearing the imprimatur of judicial notice is as good as it gets. But again, unless a questioner knows the answer in advance, trial is not the time to ask a judge to grant judicial notice. It's simply too risky. A request for judicial notice should be made during the final pre-trial conference.

The universe of authoritative literature can be huge, but the body of literature likely to garner judicial notice may be quite small. Judges not educated in medicine or science, for example, do not know the authoritative resources in these disciplines. Except for a few exceptionally learned jurists schooled, for example, in economics or social science, most judges possess the same education as the lawyers who appear in their courtrooms. For this reason, convincing a federal judge to grant judicial notice to a publication on, say, mental health, can be daunting.

Fortunately, there is a comprehensive treatise on a wide range of subjects with a very high likelihood of being authenticated through judicial notice: The Reference Manual on Scientific Evidence (3d Edition) published by the Federal Judicial Center. The Reference Manual features an introduction by U.S. Supreme Court Justice Stephen Breyer and more than a dozen pithy chapters authored by recognized experts. Subjects covered by The Reference Manual include science, statistics, epidemiology, economic damages, engineering, medicine, toxicology, and ' yes ' even mental health.

Imagine your next cross-examination of an adverse expert going something like this: “Your Honor, I want to ask this witness a few questions using the Federal Judicial Center's Reference Manual on Scientific Evidence. Will the Court take judicial notice that this book is a reliable authority?”

“Yes, counsel. You may proceed.”

“Now, then, Mr. Witness ' “

John L. Tate, a member of Stites & Harbison PLLC, is a member of this newsletter's Board of Editors, and a Fellow of the American College of Trial Lawyers.