Effective Use of Expert Witnesses

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Expert witnesses are essential to most areas of litigation, yet many practitioners create a tactical advantage for the opposition through clumsy, careless or lackadaisical use of experts. While a judge or jury will usually treat any person who comes to court and proclaims themselves an “expert” with some degree of skepticism, an expert that is unprepared, confused, mistaken or not appropriately “dialed in” to the theme of your case may do more than not help; he/she may drive your client’s case off the tracks.

You will give your experts the best chance of convincing a judge or jury of the correctness of his/her position if you adhere to a few simple rules.

Choosing the Expert
Your choice of expert will lay a sound foundation for his/her role in the litigation. Chose an expert that has some experience with the role of “expert witness.” Finding an expert who is new or fresh to litigation may not impress a trier of fact, and on-the-job training of an expert brings risks of critical mistakes during deposition or trial testimony. At the same time, shy away from experts who do nothing but litigation work or who advertise extensively to attorneys. Using an expert familiar with expert witness work will make your job easier, increase efficiencies, cost your client less and decrease the chance that they will make a rookie mistake.

Confirm Details of Compensation
Make sure that you and your client have a clear understanding of how the expert will bill for their services. Make sure that you have an estimate from your expert before he/she begins each or any area of study. Nothing will wreak more havoc that an unexpectedly large bill from an expert for work neither specifically requested, nor considered necessary to the case. Even if you pay for the work and do not use it, it will create an area of fertile cross examination, with opposing counsel suggesting through inquiry that the work turned out unfavorable to your case and was “discarded.”

Communicating with the Expert
All of your communications with your expert are discoverable. Transmit materials to experts without summary or comment. Ask your expert to contact you after reviewing appropriate materials to discuss his/her findings and opinions. Written expert opinions are rarely necessary, increase expense, and expose your expert to potential impeachment if a written report contains any errors. Be extremely careful in any email communications with an expert. Many a case has been sunk by offhand comments made by the expert, or by the attorney, in an email thread that started out with something as simple as confirming a deposition date.

Directing the Inquiry of the Expert
Know exactly what issues you will want or need expert testimony on before you hire an expert. Focus him/her on those issues, and do not allow them to wander around your case. Nothing is more potentially disastrous than an expert that casually strays out of their area of expertise and starts giving opinions on matters that are unrelated to his/her issues.

Using Multiple Experts
Do not use more experts than you absolutely have to. With the addition of each expert to your roster, you increase the chance that your own experts will disagree, step on each other’s toes or that your presentation at trial will suffer. Organizing experts to testify at trial is always challenging, and the more experts you call, the greater the challenge. Invariably, the attorney who attempts to dominate a subject matter by creating sub-specialty areas and calling an expert on each sub-specialty area, will have experts stepping all over each other at trial. Expense will skyrocket if your experts are held overnight by extensive cross-examination, or a short trial day for reasons unforeseen at the beginning of the day.

If after expert designation you find that you are lacking an expert in an area opposing counsel has designated an expert in, you may avail yourself of a supplementally designated expert per CCP §2034.280. Less is almost always more when dealing with expert witnesses.

Preparing the Expert for Deposition and Trial
All of your hard work will be lost if you do not thoroughly prepare your experts for deposition and then again for trial. You must be the one who determines how much time is required to fully prepare the expert on each occasion; not the expert. Do not attempt to prepare them while they are in their office answering phones or directing other work. Proper preparation requires concentration on the specific details and nuances of your case, which you will have a better command of than anyone else. Experts must not only be prepared on the subject matter, but also the facts as they will be testified to by your client, what other experts will testify to, the style and skill of opposing counsel and opposing experts. Avoid preparing in a coffee shop near opposing counsel’s office or the court house, as many busy experts may suggest. Not only is it a public place, but your preparation will suffer and potentially be ineffective.

Consider your Audience
Make sure your expert is prepared for the audience he/she will testify to. He/she will need to address the judge or jury in an understandable manner, and explain complex concepts or subjects in a way that they can understand them, yet at the same time, avoid being perceived as condescending or pompous. The most experienced experts will present the trier of fact the knowledge or framework for them to easily conclude that your client should prevail, not just tell them that your client should prevail.