Volume 2, Number 3
|Table of Contents|
Enhancing Your Expert Witness:
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.
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.
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.