GENERAL ADVICE TO RETAINED EXPERT ABOUT TESTIFYING

Preparing expert witnesses for their testimony is an important part of trial preparation in most cases. The reality, however, is that experienced experts are reluctant to allocate time for preparation with the attorney or doubt their need for such preparation. In addition, attorneys are often unable or unwilling to allocate their own time as well as incur the additional expert fee costs for such preparation. Written or video preparation information can be provided by the attorney to the expert, but it is questionable whether the expert will make the effort to review it and there is a risk of a feeling of resentment by the expert that they are in need of such assistance. The most critical time for such an expert preparation is before their deposition is taken. Since most cases are settled out of court, depositions become more and more important. Scheduling adequate time at a time other than the day of deposition is the best way to prepare experts adequately. An effort should be made to try to work with the expert before they are deposed and not just spending a half hour with them on the day of their deposition.

Every deposition is unique depending upon the issues in the case. What follows are some general areas for discussion with the expert. Most are self-evident, but it is helpful to have a checklist for witness preparation with all items to consider.

The two important areas to consider in expert witness preparation are the substance and content of the testimony and the manner or technique of testifying. Even if knowledgeable about  the substance of testimony, an expert can make a poor witness. Consider the general areas the expert will be asked about are (one) issues involving what the plaintiff says the defendants did wrong (two) facts relied upon in arriving at their opinions (Three) opinions reached and reasons for opinions (four) qualifications and  (five) bias issues.

An important step, in the preparation of expert witnesses, is a review of all evidence provided to the expert which the expert is relying upon for their opinion. It’s important for the expert to know what material, discovery information or other data relating, to the experts area of testimony,  has been provided defendant. Likewise, the expert should know what materials in their file have been provided to defendant or are subject to disclosure to defendant.

The goal, in part, should be to eliminate surprises for the expert witness. Anticipated defenses should be discussed fully in that regard. Furthermore, it’s important for the expert to understand the general issues so that the significance of testimony will be appreciated as to the overall impact on the case.

The expert’s qualifications should be reviewed along with personal experience and knowledge. The experts resume should be reviewed to make sure there are no surprises in that regard. The importance of experience and qualifications should be explain to the expert.

One important area of preparation is the experts understanding of the facts surrounding the occurrence. It should be reviewed to make sure that there are no erroneous conclusions or understandings.

The plaintiff’s conduct can also be an important area in the deposition as it relates to the opinions expressed by the expert. The expert should understand how their opinions relate to facts surrounding the plaintiff’s conduct. In addition, the accuracy of the experts understanding regarding the plaintiff’s conduct should be reviewed.

Plaintiffs claims of negligence obviously must be carefully reviewed along with the anticipated defenses and defense issues in that regard.

Proximate cause is always an issue and can’t be an issue even in cases of admitted liability. Each fact theory as it relates to the defend dance negligence should be examined with the expert regarding the cause of injuries. Obviously, no matter how culpable a defendant’s conduct is, if it is not a cause of plaintiff’s injuries it is irrelevant.

The experts involvement with a previous similar occurrence is important. The plaintiff’s lawyer should be sure that all of the experts practical experience and practices are consistent with the opinions they are giving in this case. Nothing is more devastating than an expert whose past conduct is the same as the fault they are now claiming on the part of defendant.

A review of possible defense issues regarding the negligence of parties who are not named in the lawsuit should be reviewed for possible issues defense will raise.

Credibility is always one of the most critical issues in expert testimony. Past contacts or any connections with any of the defendants or defense attorneys should be explored. The experts compensation is of significant importance. The expert may be required to testify to total annual income derived from expert testimony as well as percentages of time or income in relationship to that subject. The percentage of testimony on behalf of a defendant or a plaintiff will be asked.

The basic techniques for testimony are well known, such as not losing one’s temper, not volunteering and the other similar common sense advice. Some areas are of more importance than others. One area to talk to the expert about is the fact that the expert should always use positive answers whenever possible rather than equivocal answers on important subjects. It’s also important that the expert never forgets that the deposition is an adversary proceedings. No matter how cordial or friendly the attorneys are the expert must remember the goal of the defendant’s attorney is to undermine the expert’s testimony. Another important rule is that the expert should not bring papers or documents to the deposition that they don’t intend to produce or defense counsel isn’t entitled to.

These are very basic ideas on a subject that books have been written about. My reason for discussing this issue is to encourage a checklist regarding expert witness preparation advice.

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