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March 10, 2017 Practice Points

Preparing Your Damages Expert for Trial

Damages experts can be the key to winning a case

by Brent Bersin

Although many cases are ultimately resolved prior to trial, quite a few proceed all the way to verdict. As a financial and damages expert, I emphasize the importance of preparation with your retained damages expert for examination at trial. Herein, I offer four practical tips for trial attorneys to consider in this regard.

1. Frame the story. Unlike a lengthy deposition, the expert may be on the stand for direct examination for an hour or less. While the expert may have prepared an expert report of over 100 pages, with many detailed and technical analyses, much of this detail is likely unnecessary for a jury. Therefore, it is critical to make sure you and the expert define key takeaways and boil down the points to make, and present them in a logical and understandable way to the jury.  Encourage the expert to use plain language whenever possible rather than technical jargon and to avoid long narratives. Using relevant analogies is another way to make the expert’s analysis and opinions more relatable to a jury.

2. Consider trial demonstratives. Trial demonstratives, often prepared in a Microsoft PowerPoint, can be effective in reinforcing expert testimony with visual aids. Demonstratives provide a multi-sensory presentation to a jury that may consist of both visual and auditory learners. Examples of such demonstrative could include graphics of financial trends, summaries of key opinions, “call-outs” of key facts from witness deposition testimony, and summaries of calculations, inter alia. I would recommend limiting the number of demonstratives to only those that enhance the testimony. I’ve seen some experts utilize better of more than 50 demonstratives, which may tend to distract the jury’s attention away from the actual expert testimony.

3. Allow for ample preparation time. Trial is a stressful time for an often sleep-deprived legal team, one that is simultaneously handling legal issues, document preparation and organization, and examination of witnesses, inter alia. In some instances, this may result in counsel giving less attention to the damages aspects of the case; particularly since seasoned damages experts are generally well-prepared and “know the drill.” Economic damages are often a critical component of the overall case. Set aside adequate time for you and the expert to prepare together in advance of trial. This can include co-authoring a direct outline and running through it beforehand along with any related trial exhibits and/or demonstratives. That said, the end result should be smooth and not sound scripted or rehearsed.

4. Prepare for cross examination. Counsel is conversant with the rulings of the Court that have occurred prior to trial. Make sure to take the time to apprize your expert of rulings and/or matters that may directly impact their testimony (e.g., newly raised issues; rulings on pending motions; dismissal of causes of action, etc.). It may also be beneficial for you and the expert to play “devil’s advocate” and consider opposing counsels’ expected approach and points they will likely try to make. Anticipating this and preparing with your expert to respond in-kind can be invaluable.

Take the time to plan out your expert’s testimony. Having a strategy and being prepared can very well make the difference between winning and losing your case.

Brent Bersin is a managing director at Duff & Phelps, LLC, in Houston, Texas.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).