JMBM OC Litigation Newsletter: Expert Testimony: A Trial Lawyer’s Checklist

JMBM OC Litigation Newsletter Spring 2011

Expert Testimony: A Trial Lawyer’s Checklist
How to ensure your expert is a gold mine, not a land mine

Download the PDF: JMBM OC Litigation Newsletter–Expert Testimony

Winning or losing your case can pivot on expert testimony. Experts can also have a huge impact on a settlement. So why risk the outcome of a client’s lawsuit on the performance of an expert witness? When it comes to making sure that experts are credible and their testimony is clear and delivered with confidence, preparation is the rule.

Selecting an Expert
Potential experts should be carefully vetted. How well do they know the subject matter and how well can they communicate it?

  • Search for cases that mention your expert and check jury verdicts for hits; determine their role and the outcome of the lawsuits.
  • Read articles written by the expert.
  • Talk to others who have used the expert in a trial.
  • Speak with the expert face-to-face to gauge their expertise and communication skills.
  • Audit their curriculum vitae with them; make certain they are scrupulously honest and have not overstated their resume.
  • Do an Internet search to see what comes up — many experts are impeached by careless comments that appear on the Internet.
  • Discuss the results of your investigation with your expert and see how they respond. Recommend they be very careful about what they post publicly from now on.

Engaging an Expert
Typically, experts are brought in during the last phase of litigation. They must, however, be provided adequate time to investigate, research, analyze and formulate their opinions.

  • Give them a specific list of the issues and their anticipated tasks; from that, they should create a budget of their expected time and costs with realistic milestones.
  • Keep a record of what you have provided to your expert, including background information and other key materials.

Preparing for Testifying
When your expert has formulated their opinions and is ready to testify, make sure you understand and are confident in their analysis.

  • Have a consulting expert review the testifying expert’s work before they are deposed. This is money well spent — a flawed analysis is a flawed analysis regardless of how it is delivered.
  • Spend time cross-examining your expert, just as you would cross-examine the opposing expert. Both of you will learn a lot. (Even professional golfers take practice swings!)

Help your expert to be at ease with the process by telling them what to expect. You want them to be able to focus on presenting their opinions.

  • Determine the appropriate level of preparation for the particular expert on the procedural aspects, and then guide them through the process. Not every expert is a seasoned, veteran witness.
  • Tell them how to dress. Many depositions are videotaped, so they should dress at the deposition the way they will dress in open court.
  • Remind them to be professional, and to feel comfortable shaking hands with opposing counsel or the opposing party. This demonstrates that they are testifying as an independent expert.
  • Remind your expert to use respectful language and avoid jokes.
  • Tell experts to avoid filler words, as they weaken testimony and show doubt. Phrases that begin with, “I just…” or “As far as I know …” are good examples of unconvincing opinions.
  • Emphasize to novice expert witnesses that they must not volunteer information and answers to questions not asked. In a deposition, they are to tell the truth, and the whole truth, but only in answer to the pending question.
  • Let your expert know that they are likely to face one of two deposition strategies: either the exhaustive examination which includes full on cross-examination, or a “laying in the weeds” examination that only covers the opinion and the basis for it, saving cross-examination for trial.

Direct Examination at Trial

  • Emphasize that the expert’s testimony should be clear, organized and logical.
  • Suggest a strategy that they can use in presenting their opinion that is both complete and compelling, such as topical or chronological.
  • Remind experts that sharing their passion for the subject matter is appropriate. The best experts are great educators.
  • Tell the expert of the importance of eye contact.

Cross Examination at Trial
The expert is not likely to be given an opportunity to be a great teacher and communicator during cross-examination. Being cross-examined is stressful for even seasoned experts.

  • Explain to your expert that they need to know their prior testimony exceedingly well. Opposing counsel, and opposing counsel’s expert, will have read it several times!
  • Advise them to think about their response carefully before they state it. Some of the most memorable testimony comes immediately after a thoughtful pause during cross-examination.
  • Remind them it is best to use their own words in their answer, rather than adopting the words of the examiner.
  • Give your expert a strategy for answering “yes” or “no” questions. The cross-examiner often tries to force the expert to respond with a simple yes or no, even when those answers cannot be an adequate response. If forced to do so, tell them to show their discomfort, and to be assured that you will clean it up on re-direct.
  • Prepare them for the inflammatory questions. Tell your expert to stay poised and composed, to take their time in responding, and to be the most professional person in the room.
  • Warn your expert of the rapid fire, machine gun questions. When faced with this approach, tell your expert to just stop talking and take control of the pace.
  • Make it very clear to your expert: do not bluff. If they do not know the answer to a question, or they did not consider something, they should say so. Jurors appreciate and respect the honest ignorance of a few details.
  • Let them know that body language is extremely important.
  • Remind your expert that cross-examination is meant to test resolve and accuracy and that preparation is the key to demonstrating confidence and accurate responses.

It is not unusual for reasonable minds and reasonable experts to have a difference of opinion. Part of your expert’s job is to reconcile the differences of opinion that they have with the opposing expert. That will tend to elevate them in the eyes of the jurors.

Mark S. Adams is a partner in the Litigation Department of JMBM’s Orange County office. He focuses his practice on business litigation, including, contracts, products liability, corporate and partnership disputes, and hospitality litigation. He has wide-ranging trial experience in commercial disputes, including complex multi-party litigation and class actions. He has tried numerous cases in state courts, federal courts, and in domestic and international arbitrations. He has obtained two of California’s annual 50 largest jury verdicts in the same year. Contact Mark at MarkAdams@jmbm.com or 949.623.7230.