In the world of litigation, young lawyers find themselves with new challenges and opportunities for growth as their practice and experience levels increase. One important step for young lawyers growing into seasoned litigators is dealing with expert witnesses and their deposition testimony. The subject matter requiring the use of expert witnesses can be medical, engineering, product liability, or a range of other issues, but the tips below can be used in any of those instances.
The first “big” case I was involved in had to do with injuries claimed as the result of a fall from an allegedly defective ladder. I quickly found myself learning more details about ladders than I ever thought I would. I still recall random details learned in that case, including my surprise at the length of time a thorough expert could take for a ladder inspection. In later cases, I learned details about the engineering components of other products and of medical conditions and treatment options. After dealing with a number of experts, I better understand that, regardless of the subject matter and how little I do or don’t think I know about it, my approach to the use of experts and their testimony should be the same.
First, selecting the right expert witness is critical. To select the proper expert, you must first be mindful of the facts of your case and the purpose for which the expert is needed. Before engaging an expert, I often ask myself what questions I need addressed or answered from my client’s perspective and proceed forward based on that need. I find it beneficial to think ahead to a potential trial and what facts and evidence I need established to support arguments or legal theories in the case.
Some experts are easier to locate than others. Putting in the effort early in the discovery phase of a case will be time well served for the client in obtaining an expert who can provide valuable insight during discovery and depositions of parties or other witnesses. Lawyers should feel comfortable reaching out to colleagues for recommendations of expert witnesses depending on the subject matter or geographic region of the case. I have found my involvement in the American Bar Association to be an added advantage in this regard. A number of times in past cases as I have been searching for an expert in a different part of the country, I have reached out to friends and colleagues I’ve connected with through the ABA for recommendations. Attorneys I was handling those cases with were impressed by my network and ability to locate people in other parts of the country so quickly.
It is critical for the lawyer to remember he or she is the one with the legal knowledge in a case and not to allow himself or herself to be intimidated by an expert or his or her expertise.
Second, a lawyer would benefit from learning enough about subject areas outside of his or her comfort level to engage in discussions with or questioning of experts. Lawyers should not feel too intimidated to ask the expert to explain technical terms or theories. For example, in talking with medical experts, I may not understand certain terminology, which may also mean the jury will not understand it. If that is the case, the lawyer will do his or her client’s case a service by providing the jury with the additional explanation. The simplified explanation could also help the jury connect to or relate with the expert witness.
Third, it is critical for the lawyer to remember he or she is the one with the legal knowledge in a case and not to allow himself or herself to be intimidated by an expert or his or her expertise. The expert is being used for a specific purpose, but it is the attorney who has underlying responsibility to the client. Lawyers typically know details from the entirety of the case, not just the part for which the expert has been retained. Lawyers should not take for granted an expert’s knowledge of the facts of a case and make sure those facts are available to the expert. I learned the hard way that experts are like any other witness in that they need preparation, particularly for deposition and trial testimony. Rather than assume an expert has particular experience, the lawyer must ask the necessary questions and set aside the proper time to prepare the witness for his or her testimony. Even where an expert has significant experience and has testified previously, a refresher course is beneficial close in time to the testimony. Of course, the expert will testify to the subject matter within his or her expertise without assistance or interruption by counsel, but the attorney can prepare the witness for what to expect, the demeanor of counsel involved, and other relevant information to make the expert deposition go smoothly.
Finally, particularly in trial testimony, lawyers should be mindful not to bore the jury with details that will provide no benefit to the case. If a detail is unexciting but necessary to the case, it must be explored and properly expounded upon. A lawyer needs to ensure the evidence is admitted into evidence to be used in effective arguments to the jury. But in those instances where certain details are not necessary for a jury’s benefit, a lawyer should be mindful of how the expert is being received and perceived by the jury.
Expert witnesses are often at the top of their field and highly educated. It is the attorney’s responsibility to try to have his or her expert witness connect with the jury in a way that causes the jury to be engaged in the testimony and information the witness is providing with hopes the expert will ultimately shed clarity on the issues in the case in a way that benefits the client being represented and served.
Roula Allouch is an attorney with the Law Offices of Raymond H. Decker, Jr., in Cincinnati, Ohio.
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