April 2006
Volume 2, Number 3
Table of Contents

Enhancing Your Expert Witness:
Impressively Introducing Your Expert

By Bruce Ridley 1

I. If You Have a Choice

Almost all cases call for expert testimony. Often, it is a doctor or other medical expert. It may be an engineer, an accident reconstruction expert, or a statistician. Usually, the case will turn on which expert the trier of fact finds most convincing. This may mean which expert has the best facts to which to testify. However, this is not always the case.

Some experts never should be placed in the witness chair. They create problems for their attorneys. Some behave in a superior manner and repeatedly use huge, complicated words. Others cannot seem to explain anything in words an impatient, bored jury would have the patience to attempt to understand. Still others speak at the pace of auctioneers or in a deathly monotone. Some can make opinions but not give short, concise reasoning to support those opinions. Some may have poor reputations in their expert communities. Some just are annoyed at having to testify, even though they are being paid for their testimony.

Often, an attorney is bound by the experts his or her client has seen. It may be an attending physician, or it may be an examining physician performing an independent medical examination. It may be an expert accident reconstruction engineer chosen months or years before by one's client. Sometimes, an attorney may have the opportunity to choose among various experts an injured party has seen. If there is a chance to choose, choose carefully.

II. Choose, Avoid, Prepare, Enhance

There is an acronym some attorneys use consciously and most use subconsciously: CAPE. Its letters stand for: C hoose; Avoid; Prepare; Enhance. Basically, an attorney must choose the most effective expert available, often from experts who already are involved in the case. For instance, in workers' compensation law in Washington State, the testimony of an attending physician should receive special consideration. 2 For an attorney with such an expert, giving up the advantage of the special consideration is not something easily done. However, there may be more than one doctor who may fit under the aegis of attending physician, or there may be another reason for choosing not to call an attending physician. Likewise, specialty, timing of examination, and other factors may determine which examining physician an attorney should call. CAPE will increase your chances at hearing, and they may increase the potential for a favorable settlement.

Avoid the types of experts who cause problems for presenting your best case, if possible.

Prepare all experts well. This is not the subject of this article, but it is the key element in presenting any witness. It must be done before trial, when you are organizing your case, and it must be done thoroughly. By the time your expert appears on the stand, he or she must know the exact elements of the case you have to prove, and you must know the exact answers the expert will give to your questions. If there are complicated expert terms your expert will use, such as patellofemoral chondromalacia, your expert must be prepared to explain such terms in short, simple sentences the jury can understand and remember.

III. Enhance

This brings us to the last word from the acronym, Enhance. This is the focus of this article. The questions you present an expert witness at hearing constitute part of your preparation, but more, it is your effort to introduce your witness to the trier of fact. It is your best introduction of your witness to the jury so as to show the heighth and depth and breadth of your expert's expertise. It is the "WOW factor."

You must be patient and complete. Introduce your expert carefully. For the best result, you must present every aspect of your expert's training, knowledge, and skill to the trier of fact. Remember, whenever your expert uses a technical term or a term of art in an answer, immediately follow that answer with a request to explain any such term or terms.

Here is a general format.

1. Name and address. Have the expert spell his or her last name.

2. License or certification in the jurisdiction [and other jurisdictions].

3. Witness' specialty.

4. Witness' explanation of that specialty.

5. Tying the specialty to the specific issue at bar, e.g., tying a doctor's medical training and clinical expertise to include arthritic processes and the results of trauma on the spine in a case involving a claim for a cervical injury. This may require extensive questioning, narrowing down from general expertise to more specific expertise. If so, be patient and do that questioning.

6. The expert's use of his or her specialty in reading, interpreting, and analyzing scientific testing appropriate to that specialty, e.g., a chemist using results from a gas chromatograph or a neurosurgeon using MRI or CT scan findings.

7. Frequency of the expert's use of such scientific testing.

8. The expert's certification in the specialty.

9. The date of certification.

10. The requirements for the certification the expert had to meet.

11. The identity of the certifying entity, and the scope of it [national or international generally are best].

12. Undergraduate study, when the expert graduated, and any honors awarded.

13. Graduate study, when the expert graduated, and any honors awarded.

14. History of practice in the field of expertise, from graduation from graduate school to present. [Note: military affiliation sometimes will affect a jury.]

15, Membership in various expert societies, and which ones.

16. During work as an expert, did the expert routinely review various authoritative texts and journals specific to his or her specialty?

17. Has the expert maintained the license or certification of the expertise with continuing education courses?

18. The number of conferences and meetings the expert has attended dealing with the expert's general and specific expertise, e.g., a neurosurgeon who may attend seminars on neurosurgery or a subspecialty, such as oncological neurosurgery.

19. Any papers presented. Elicit the number.

20. Any publications in the specialty. Elicit the number. If any are relevant to the case at bar, have the expert identify them and their publishers.

21. Active or past privileges recognizing expertise, e.g., the right for an astronomer to use an observatory or a doctor having hospital privileges.

22. Knowledge of specific standards to be applied in the case at bar.

23. Frequency with which the expert has applied those standards in the past.

24. Explanation of the standards and the entity or entities promulgating the standards.

25. In many cases, an expert may only review records or perform a one-time examination of a person or a site of an event. In such cases, you must ask the expert, step-by-step, if his or her analysis of the evidence would have differed in any way from having been involved in issues at the time the relevant events occurred.

26. Emphasize the time and effort the expert expended in analyzing the issues at bar on which he or she is opining.

27. The extent of the records the witness has reviewed concerning the case at bar. This may include records specific to a person, a place, or an event.

28. The extent of any applicable scientific studies the expert has reviewed applicable to the case at bar.

Well, now you should be ready to examine your expert as to what opinions he or she has as to the case at bar, how the expert arrived at those opinions, and why he or she excluded or rejected alternative theories. Remember, CAPE is only the start, the beginning entry to the presentation of your case. If you establish the expertise of your witness, you still must meet every element of proof. To prevail, you must do so better than your adversary. When you have provided a solid foundation for your expert, you have optimized your chances to have the trier of fact adopt your expert's opinions.

 

Mr. Ridley is an attorney and has been an industrial appeals judge with the Washington Board of Industrial Insurance Appeals since 1986. He is an administrative law judge and generally hears cases involving workers' compensation.

1 The opinions expressed herein are those of Judge Ridley and not those of the Board of Industrial Insurance Appeals.

2 Spalding v. Department of Labor & Indus., 29 Wn.2d 115 (1947); Hamilton v. Department of Labor & Indus., 111 Wn.2d 569 (1988).

 

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