January 24, 2018 Practice Points

Working with Academic Experts

Ensuring the successful engagement of an academic expert and best practices for testimony preparation

by Agustina Levy

You can make a remarkable difference in a case by choosing the right expert and support team. When this choice leads to an academic expert with little to no litigation experience, you will need to educate them on the differences between their everyday academic activities and litigation. Incorporating the following best practices to retain and prepare an academic expert for recorded or live testimony will facilitate a smoother transition.

First, retain the best expert and define the scope of his or her work early on:

  • Ensure a good match between client, counsel, expert, and the expert’s support team. If the expert is a free-agent, highlight the importance of an experienced support team. Build a good rapport between the entire case team. Schedule regular check-ins and timely discussions of preliminary results.

  • Allow enough time for the expert to develop his or her opinions. Communicate clearly the expected presentation of his or her opinions: reports, affidavits, as part of responses to interrogatories, and/or oral testimony.

  • Plan the schedule ahead. Academic experts owe a duty to their employing academic institution and may have greater scheduling restrictions than a non-academic expert. Make sure to agree on milestones and timelines to meet expectations and address concerns in a timely manner.

  • Make full use of the expert and his or her team. Experts can assist at several stages of a case including discovery, document and data requests, interrogatories, fact deposition planning, and live deposition and trial support.

Second, after retention, continue to foster a productive relationship with your expert by educating and adequately preparing him or her for testimony or trial:

  • Educate the expert in the theme of the entire case and the legal issues bearing on his or her testimony. This will ensure the expert is acutely attuned to the case strategy and able to have the record reflect his or her opinions accurately and completely. Do remind the expert, however, that he or she cannot interpret the law or in any other way confuse his or her role with the trier of fact’s.

  • Be efficient with preparation. Avoid showing numerous documents to the expert during preparation or overshadowing the pertinent documents with redundant material. If possible, a member of the expert’s support team should evaluate and digest new documents prior to deposition or trial preparation. Consider also enlisting the help of the expert’s team in the preparation of direct and anticipated cross examination outlines. Remind the academic expert that their answers should be responsive but concise. Unlike in the academic setting, the goal as an expert witness is not to broadly educate but to make sure the record is clear and focused on his or her main conclusions. Emphasize the need for the expert to use layman’s terms and avoid technical jargon as much as possible. Further, you should prepare the expert for video-taped depositions as if it was trial testimony. While the camera is on nothing is “off the record,” including:

    • Body language (e.g. crossed arms, lack of eye contact, chugging water, shifting eyes after a question, playing with an object),

    • Demeanor (should be respectful, honest, knowledgeable, confident, and not overly casual, avoiding entering a “friendly” conversation with opposite counsel),

    • Tone and pace (should be calm and focused, even when asked the same question many times, ensuring a complete, carefully worded answer each time), and

    • Dress choices.

Video clips are very effective at highlighting the slightest differences in testimony and can potentially harm an expert’s credibility. Consider recording the expert (even with a phone) while preparing for cross testimony.

  • Prep for trial using the expert’s language. Encourage the expert to use his or her best teaching techniques to connect with the judge and/or jury. You should also share your court experiences to put the expert at ease with testifying. For example, discuss the judge’s character, visit the courtroom, and go over the court’s procedures and expectations before trial.

By taking these steps, you will position yourself to retain the best expert and utilize his or her experience in the most efficient manner for your client.

Agustina Levy is a senior economist with Coherent Economics in Highland Park, Illinois.

Copyright © 2018, 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).