MAKING THE BEST USE OF EXPERT WITNESSES
Fortunately, when it comes to questions about the use of expert witnesses, there's no shortage of expert advice. Much of it has been learned the hard way -- by mid-trial trauma. Here, culled from many sources, is some of that expert advice.
Sometimes the law requires the use of experts; sometimes you may decide to use experts to increase the credibility of your case. In selecting experts, you will notice that in many instances, there are no clear-cut, absolute, right or wrong answers, but rather choices to be made that should be based on a careful consideration of the pros and cons.
Who is an expert?
An expert is someone who knows something beyond common experience who can help you prove something you couldn't prove otherwise. The most common expert witnesses are professionals, but there are also non-degreed experts whose background and experience qualifies them.
It is productive to think beyond "expert" to salesman, teacher and communicator. The expert's function as teacher to the attorney and jurors is a critical one. The more persuasive he or she is, the better.
In a way, an expert witness is like the anchor person on a television news program. Some networks emphasize polished delivery. Others rely on seasoned reporters, valuing their command of the facts over their appearance. Ideally, the anchor person is a combination of both types, and so is the expert witness.
Experts from academic fields may be good communicators because of classroom practice, but they may be less available than professionals from consulting firms who can take the time necessary to be thoroughly prepared.
Similarly, there are pluses and minuses to hiring experts within a company involved in litigation. On the positive side, they have generally devoted time to the issue and are less likely to be blind-sided. Also, jurors tend to pay more attention to the participants in an event. On the negative side, however, it may be easy for opposing counsel to show that they are not independent and that therefore their testimony may be cloaked in bias. Keep in mind that although company executives may make strong witnesses, designating them as experts opens them to discovery, which can be a pitfall.
Finding an expert
Sources for expert witnesses include personal referrals, jury verdict reporting services, reported appellate decisions, directories, society membership rosters (though using a roster at random is unsatisfactory), trade associations, regulatory bodies and private consulting firms.
A professional law librarian can also be a big help in obtaining a list of potential experts. Personal referrals are another excellent resource, particularly when that source is another lawyer who has won with the expert. Experts can be found on university and college faculties and at medical schools.
Taking the time to talk with more than one potential expert can be rewarding. Not only are you likely to wind up with a better quality witness, but the people you interview may come up with some new issues and angles in the case. Caution: Always meet your expert face to face before the trial.
Consultants vs. experts
Distinguish between consulting expert and trial expert. A good consultant, retained early in a case, can teach you whether you need an expert to testify and may even eliminate the need for one. An expert's greatest value may be in evaluating a potential lawsuit to determine whether litigation is feasible, what the chances are of success, and estimating the costs of prosecution or defense.
You may decide to hire one expert to serve as a consultant and a second expert to testify, insulating the two so that the consulting expert's work is not subject to discovery. Never the twain shall meet.
A consultant can help in preparing a complaint or spot defenses to a lawsuit. Early involvement means better preparation for testimony. The consultant can help formulate a written discovery plan, review materials, and be of particular help during deposition of the opposing expert.
Qualifying the expert
In interviewing potential experts or deposing an opponent's expert, it pays to be thorough. Less than an hour may not be enough time, some attorneys say. The expert should be asked about his technical and academic training, where and when he was trained, what degrees, licenses or certificates he holds, and what post-graduate training he has received. The inquiry should include his membership in professional or industry organizations. What are his titles? To what staff does he belong? Has he written or spoken professionally? What have his positions been throughout his career? Get a bibliography and a resume. If he has dealt with the same issue in another case, get the details.
Another area to explore is the expert's past history as a witness. Where and when has he testified, and how often? Has it been more for plaintiffs or the defense? How much was he paid? How did he get involved? Has he ever served the opponent before, or been represented by that firm?
When to use an expert
There is general agreement that an expert should be involved in a case as early as possible: in technical analysis, preparing for deposition, during discovery, analyzing documents in settlement and mediation discussions, and summing up complex facts for jurors.
The client should be involved in the selection and retention of an expert, and before any payment agreements are reached.
Be careful not to overdesignate experts. With more than one, it may become almost impossible to eliminate inconsistencies in testimony. It may be better to focus on thoroughly preparing a single expert. Many experts are vulnerable because of lack of thorough preparation. Quality, not quantity, is the watchword. Another caution: If you designate two experts and opposing counsel takes depositions, and then you decide to have only one expert testify, opposing counsel can still use both depositions.
Use care communicating
It is important to use great care in communicating with experts from the outset. Assume that every conversation among counsel, client, attorney and anyone else concerning the expert's work on the case, along with all material in the expert's file and documents generated by the expert, will be discovered. It is better to look for another expert than to try to block discovery that might be embarrassing.
Written reports should be discouraged at the very first meeting. Remember to give your client clear guidelines as to what can and cannot be discussed with the expert. You may want to consider proposing an agreement with opposing counsel allowing experts to communicate in writing, but only permitting discovery on that which they will finally rely.
Preparing the expert
During the preparation process, counsel should in general set a positive tone by providing support, projecting confidence and being enthusiastic about the case.
Ensure that your experts know the case thoroughly, but don't attempt to fashion their opinion for them. During cross-examination, they will be asked how their opinions were formed. Simulated cross-examination will generally reveal potential weaknesses in an expert witness. The expert should be neither just a "yes man," nor argumentative. Watch for inconsistencies.
Experts should be supplied with everything that might bear on their opinions. Don't wait until the last minute to do the preparation. Have your experts think about possible questions and responses and warn them about possible opposing tactics. It is important that they not be afraid to say, "I don't know."
Some experts have a tendency to exaggerate the strengths of a case. Assure them that it is often more valuable that they point out any weaknesses and voice more conservative opinions.
In preparing your experts for trial, tell them to be polite, respectful and to communicate: to tell a story as would a salesman. It is also wise that the experts' message be delivered in more simple language than they or you would ever believe necessary.
Deposing the expert
In deposing an expert witness, restraint and self-education are the keys. As an attorney, you must make a judgment call whether to concentrate on getting facts and opinions and holding back tough questions until time of trial, or cross-examining for fatal concessions. There are advantages and disadvantages to both methods. If, in educating yourself during deposition, you make a fool of the expert in the process, you may end up with a new expert at trial. On the other hand, if you just ask the expert's opinion and the basis for that opinion without cross-examination, you may pass up an opportunity to obtain valuable concessions.
Many attorneys cross-examine aggressively in deposition to eliminate surprises in trial, to look for openings and to test the reactions of the expert. This approach, however, has the effect of giving the expert more preparation and could also make him less vulnerable at time of trial. If you depose, do it thoroughly. Try to find out all of an expert's opinions and get him or her to agree that all aspects have been covered. Have the expert state the factual basis for each opinion and explain his or her reasoning process, from facts to conclusions.
Decide ahead of time whether you are going to use the deposition to persuade your opponent to settle or to prepare for trial.
Matters of appearance
During testimony, the expert is on trial as to the facts, but will also be scrutinized as to his or her communicating abilities, emotions and appearances. Advise your expert about body language. Crossing the arms defiantly, lounging in the chair, ignoring or paying too much attention to the jury are all to be avoided.
A speech and communications coach asked 20 experienced trial judges about communication and credible testimony. In deciding which witness to believe, the judges cited demeanor, body language and "obvious sincerity," as well as careful consideration of the evidence. The judges were bothered by the use of crutch words such as "You know what I mean," "Whatever," and "Ummm..." as well as run-on sentences, poor eye contact and rude or aggressive attitude.
Qualifications and professional background, and good preparation were considered paramount by the judges, along with the ability to explain the information in clear, simple terms with consistency and lack of bias.
During trial there is no question that the expert will be attacked relentlessly. He or she may be the most important witness. Anticipating this, try to get everything out on direct examination.
In qualifying your expert before the jury, avoid a long procedure that makes the expert seem self-important and bores the jurors. Focus on what your expert has to say rather than past performance. Passing out copies of his or her resume to the jurors and mentioning a few of the important points can save time.
Should an expert crumble on the stand, it doesn't pay to be melodramatic or to pick on that witness. The jury won't like it. Having your expert sit at your table during cross-examination of the other side's witness is discouraged. Seating your expert in the audience throughout the trial, however, could gain a few points.
The compensation issue
Make sure what the fee schedule is at the outset and stick to it. Often, experts will be asked on the stand about their compensation. Consider carefully the effect of that question on the jury. Remember that even if you don't ask the plaintiff's experts what they are being paid, opposing counsel can come back and ask yours. Consider a prior agreement on whether you will bring that up. In asking about compensation, it may be effective to focus on total compensation rather than an hourly rate. Have your experts bring their time records in case they need to refresh their memories.
Getting hearsay admitted
Experts can get things into evidence that would be otherwise inadmissible, from visual aids to projections and treatises. Visual aids, maps, diagrams, charts, photos, models and videos are also helpful in simplifying complex issues for the jurors.
Sometimes an expert may give an opinion that is based on hearsay. All kinds of records, facts and data may be relied on by an expert in forming an opinion, including the expert's experience, so long as the reliance is reasonable, but an expert may base his opinion only on reliable information.
As issues grow more and more complex, we are seeing an increasing use of expert witnesses with credentials in still more specialties. Psychiatrists and psychologists, for instance, are being used more frequently to determine the extent of emotional damage for which awards are sought in civil trials.
More and more, lawyers are calling in experts to testify about final issues which formerly might strictly have been left up to a jury. There was a time when there were objections to such testimony, but now it is clear that experts can now be expected to testify on ultimate issues.
Many of the abuses which occurred prior to legislative revisions in the discovery law have been eliminated. It is now mandatory that when one party requests an exchange of experts, every party must join in. Litigants must disclose in the exchange which experts they have contacted and in which specific areas they will testify. Attorneys are also required to ensure that the experts will testify and that they will be ready at the time of deposition. Sandbagging beyond the allotted time to disclose experts may now preclude an attorney from using them.
Meantime, the courts continue to chip away at the attorney work product privilege and attorney-client privilege with respect to experts. Both the attorney and the expert need to be conscious of that.
Remember that experts shouldn't simply be told to analyze something. To be most effective, they should know the issues and how counsel plans to use their reports. Those experts who are able to communicate effectively can be invaluable. They should be qualified carefully, used early and prepared with painstaking care. For in the final analysis, what the expert has to say is more important than what the lawyer has to say.