Getting the Most Out of Your Expert Witness

Sometimes, you won’t have much choice in picking your experts (ex. The treating physician, the toxicologist who analyzed your drugs).  But, if you do get the opportunity to pick your expert, think about what type of expert you’d like.  Within your range of choices, do you have an expert who has practical, specific knowledge about this particular subject matter?  If your case involves a crash between two sedans, you’d be better off having someone who specializes in crashes between sedans rather than a general accident reconstruction expert or someone who only works with SUV’s.

Ideally, you want someone who has formal training plus practical experience.  Often, jurors feel that practical knowledge is more valuable than “book knowledge.”  A mechanic who works on cars might be more interesting (and believable) than a Harvard educated design expert.  They might be more willing to believe a crack addict who says, “This s**t is crack!” (Brooks v. State, 762. So.2d 879 (Fla. 2000) – no abuse of discretion to determine that experienced dealer of crack cocaine was qualified to testify as an expert regarding the identity and approximate weight of the rocky substance in the bag) than a toxicologist with lots of fancy letters after his name.  Or maybe not.  You’ve got to know your potential jury pool.  Regardless of who you pick, here are three essential tips qualities your expert should possess:

  1. They must be willing to prepare. They must be willing to invest the time to become familiar with your case.  Some experts are too busy.  They won’t reach an opinion until the day of trial (too late to help!)
  2. They must be impartial. If your expert appears to be a “hired gun,” he won’t be as persuasive.  If you’ve got the choice between someone who testifies solely for the prosecution or someone who testifies for both sides, consider the benefits of someone who doesn’t seem to be tied to one party.
  3. They should be good teachers. They not only need to be able to teach you (the best way to cross-examine the opposing expert is to have your expert teach you and point out what the other guy did wrong), but they also need to be able to teach the jurors without talking down to anyone.  He should be able to explain things that the jury won’t intuitively understand.  He should also be able to show the jury that the reason he’s an expert is because he knows more than they do.  For example, when determining speed calculations using skid marks, one of the things that isn’t in the equation is the weight of the vehicle.  Intuitively, we assume that a heavier vehicle would take longer to stop.  But in reality, the heavier the vehicle is, the higher the braking ability because it exerts more friction/drag/force …  it seems counter-intuitive, but it isn’t.  The expert should be able to explain these topics so that the jury easily understands them.

Get them involved early. The longer you wait to get your expert involved, the less prepared they will be.  Give them enough time to prepare.  Don’t wait until the last moment to add them to your case.  The more time they have to get prepared, the better they’ll do.

Preparation. Give them everything they need to make an informed decision.  If you hold something back, that affects the quality of their opinion.

Is he testifying within his area of qualification? Not every expert is an “expert.”  For example, you’re a lawyer.  That means you’re an expert in the field of law.  But if you were asked about a specialty area within the field of law, you might not be an expert.  Let’s say that you’re a criminal defense lawyer.  If you were asked to testify regarding federal scoresheet guidelines, you’d easily be considered an expert.  But what if we asked you about another legal topic, such family law or marital dissolution (topics that you haven’t touched since law school).  Even though you studied it, it doesn’t mean you’re an expert.  The same is true with your witness.  Make sure that you’re calling him to testify about a topic he’s specifically qualified in, and not just something he has general knowledge about.  Don’t let the witness go beyond his expertise, or you’ll have disastrous results and a painful cross-examination.

Is he testifying within the limits of his expertise? What do you expect from him, and can he deliver?  Make sure that you understand the limitations of the witness’s expertise.  Not only do you need to evaluate what the witness can they testify to, you also need to identify what he can’t testify to.  What are the limitations on their science?  For example, with head-on collisions, the degree of angle can dramatically impact the equations, so your crash reconstructionist might not be able to give you a speed estimate.  Make sure you understand the limitations of the science before calling the witness.

Help him understand how a trial works. Does the witness understand how his testimony fits into the overall picture?  Tell him about how a trial operates.  Explain the difference between direct and cross.

Prepare him for cross-examination. Conduct a mock cross-examination.  Don’t be a wuss – ask him the most difficult questions you can.  Challenge him.  Better to discover the weaknesses in your office rather than on the witness stand.  Specifically prepare him for your opponent’s cross.  Will there be personal attacks?  Wagging fingers?  Ridiculously long questions?  Short, staccato questions?  Strange mannerisms?  Let your witness know what’s coming.  Identify “trap” questions your opponent likes to use and explain how to answer them.  (ex. “Did you discuss your testimony with anyone?”  Well, obviously they spoke with you.  Don’t deny that they spoke with you… it’s ok.  “Were you paid for your testimony?”   “Did you review any documents while preparing for trial?”

Here are some sample tips for testifying that you can share with your witness:

  • Don’t get rushed. Get into the pattern of “Question – Pause – Answer.”  By ensuring that you pause after each question (regardless of the question’s difficulty) you’ll avoid getting pushed into rapidly answering the defense attorney’s questions.
  • Talk to individual jurors, not “the jury.” Make eye contact with individuals.  Think “conversation,” not “soliloquy.”
  • Remember that you’re always on stage. Maintain a serious composure before and after you testify.  The jurors might see you as you drive into the courthouse, in the hallways as you wait to testify, or after you’ve finished testifying.
  • If you make a mistake, correct it immediately. You’ve heard that “it’s not the crime, it’s the coverup.”  Jurors will forgive you for making a mistake — they won’t forgive you for covering it up.
  • Don’t look to me for answers. I can’t help, and it looks like you can’t take care of yourself.
  • Don’t be a jerk. Unfortunately, it needs to be said.  You can have all the brains in the world, but if you’re a jerk, the jurors won’t want to listen to you.

One final word before he takes the stand. Will he be there the entire day?  If so, tell him to refrain from leaning over the bar and whispering to the lawyers.  It removes his appearance of impartiality.  His appearance before he takes the stand is as important as his appearance on the stand.  How is he dressed?  How does he approach the witness box?  How does he stand when he takes the oath?  How does he raise his hand?  What will he carry with him to the stand?

This is isn’t intended to be a complete training manual on how to use expert witnesses (because a complete discussion of that topics would take about 10,000 pages to write and would bore you to tears), but hopefully this quick primer will help you with choosing and using your next expert witness.

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One thought on “Getting the Most Out of Your Expert Witness

  1. Excellent summary of the key factors in handling any expert. I wish evey trial lawyer on the planet would memorize these! You have a real gift for honing in on the essentials. Thanks for sharing your tips with all of us.