April 02, 2021 Articles

Knowing When Not to Call Your Expert at Trial

Everyone assumes they will call expert witnesses to testify at trial. But what if the better strategy is not calling your expert witness to the stand?

By Lisa M. Norman and Ben Westcott

The need for expert witnesses is one of the first matters analyzed when an attorney begins working on a new case. In most every case, the presumption is that expert witnesses will be not only helpful at trial but also, in fact, essential. This is particularly true when the opposing party is seeking a multimillion-dollar damages award. However, while it is certainly necessary to prepare all of your expert witnesses to testify at trial, there comes a point as trial strategy evolves when you have to actually decide whether or not to call your expert witnesses to the stand.

Before getting to the point where such a decision must be made, thorough expert witness discovery must be conducted. At the conclusion of the discovery period, motions to exclude experts are routine. Of course, even if an opposing expert manages to squeeze through the initial Daubert gate, it is always critical to preserve all objections at trial to any legally insufficient expert testimony.

If the opposing party’s expert witness failed to present legally sufficient testimony to support the claim for damages, the opposing party could seek to overcome its deficiencies by eliciting testimony from your expert witness when he takes the stand. With that potential risk in mind, it may be strategically beneficial not to call your expert witness to the stand and to argue that your opponent failed to meet its burden of proof.

Such was the case in Pike v. Texas EMC Management, LLC, 610 S.W.3d 763 (Tex. 2020).

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