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January 24, 2019 Practice Points

Tips from the Bench on the Presentation of Expert Witnesses at Trial

The Honorable J. Mark Coulson, U.S. magistrate judge for the District of Maryland, offers insights on preparing and presenting expert testimony at trial.

By Eric R. Harlan with Hon. J. Mark Coulson

The Expert Witnesses Committee is pleased to offer the insights of the Honorable J. Mark Coulson, U.S. magistrate judge for the District of Maryland, and fellow of the American College of Trial Lawyers, on preparing and presenting expert testimony at trial.

What are some recommendations for preparing an expert for his or her direct exam?

Experts generally resist preparation because they are confident in their knowledge of the subject matter. However, without thorough preparation, experts can get the underlying facts of the case wrong, greatly undermining any opinions no matter what their credentials are. For example, if the expert incorrectly asserts that the skid marks in a truck accident were 50 feet when they were 200 feet, it calls into question any other opinions he or she intends to express in the case.

Additionally, an expert may not be familiar with the legal standard that governs liability in the case or the admissibility of the opinion. For example, if the defense of your medical malpractice case is that earlier surgery would not have changed the outcome, an expert opinion that earlier surgery “may well not have” changed the outcome is insufficient to meet the “reasonably medical probability” standard. An expert whose opinion is simply based on his or her “personal experience” may not meet the admissibility standard applicable in the jurisdiction, such as Daubert. An expert may not know that agreeing that a treatise is “reasonably reliable” opens the door to impeachment from that source.

As a result, try to set aside specific time for preparing your expert on a separate day from the expected testimony date. Do the preparation away from the expert’s office if possible to minimize distractions. Spend at least an hour of preparation for each hour of expected testimony. Make sure that your expert is clear on the underlying facts and timeline, as well as the applicable legal standards. Have an outline prepared for direct so that the expert gets a sense of the flow of his or her direct testimony. Make sure they are familiar with any demonstratives you have prepared, and that they alert you of any demonstratives they might have prepared. Prepare a cross examination and go through it with the expert so that he or she will not be flustered on the stand.

Finally, make sure you review the expert’s file and anything that he or she intends on taking up to the witness stand to avoid any surprises.

Is there a particular method of qualifying an expert that resonates best with a jury?

Strike a balance between being thorough and doing a death march through the C.V. Pick those portions to highlight that are of most interest to lay people, such as publications they may have heard of (E.g., New England Journal of Medicine, Nature magazine, etc. versus highly esoteric journals). Don’t take for granted that jurors have an understanding of credentials like “chief resident,” “fellowship,” “editorial board,” or “peer-reviewed journal.” Sometimes it can be impressive to bring in copies of things like textbooks that your expert has written.

Focus on practical experience with the subject matter at hand. For example, for a fire cause and origin expert, ask approximately how many fire scenes the expert has investigated. For a surgeon, ask how often he or she has performed the procedure at issue. If your expert has written an impressive article, make sure the expert is prepared to boil it down to an easy-to-understand concept, such as, “In that study, we looked at problems that premature babies have with their lungs.”

Don’t forget to run through the materials the expert reviewed in forming opinions in the case at issue. Where your jurisdiction requires “magic words,” make sure you know them. For example, “are you familiar with the standard of care applicable to a neurosurgeon perfoming xyz surgery?”

How can you grab the attention of the jury at the beginning of your expert’s examination, particularly if the subject matter is dry or technical?

If possible, get your expert out of the witness chair and up in front of the jury explaining something (anything) as soon as possible. Jurors are looking for help in getting to the right place such that having your expert be their teacher will build credibility and goodwill. Do not overestimate the experience level of the jury. You have been living with the case for quite a while but they are just hearing about it. Before jumping into a valve replacement surgery, have your expert show them how the heart works. Before talking about burn patterns, have your fire expert talk to jurors about the three things necessary for a fire (heat, fuel, and oxygen). None of this is wasted time, and makes the jury much more likely to believe your expert’s specific opinions in the case.

What type of demonstrative aids work best with juries, and how do you recommend the attorney and the expert use/interact with them?

Generally speaking, the simpler the better and the fewer words the better. Your demonstrative is really just an excuse for your expert to get out of the witness chair, get in front of the jury, and become a teacher rather than a hired-gun witness. If possible, the lawyer should get out of the way and let the expert talk directly to the jury once a foundation for the exhibit and perhaps a general orientation to the exhibit are done.

Make sure you pre-clear your exhibits with the court and your opponent so that you don’t encounter objections that break up the flow of your expert’s presentation.

When and how should you voir dire an opposing expert on qualifications?

This sounds trite, but only spend time doing this if you are going to score some points that will be obvious to the jury. Remember that if the qualifications were really lacking so as to potentially preclude the testimony, you likely would have won your Daubert motion or motion in limine. So, it might be worth it to point out in a products liability case that the other side’s expert might have experience as an electrician, but no experience in designing a consumer product such as the coffee maker at issue in your case. It probably isn’t worth it trying to impeach an expert for doing his or her specialty training at an arguably less prestigious program than your expert’s. Keep in mind that unless you have a Perry Mason moment, the judge will declare the witness an expert after your voir dire, which can signal to the jury that your questions were a waste of its time.

You should also think about whether, as your opponent starts his direct on qualifications, you simply stipulate as to the witness’ expertise. This limits your opponent’s ability to build up the expert’s credibility during direct.

What do you recommend for the cross-examination of an opposing expert following a strong direct exam, and how can you best insulate your expert from a damaging cross?

It is very difficult to score points against a good expert. In fact, such experts will often use your cross questions as opportunities to score more points against you. Also, make sure that you were listening on direct; if the expert didn’t bring up a point against you (even if mentioned in deposition or report), there is no wisdom in bringing it up just to try to score a cross point about it.

If you have an absolutely terrific bit of impeachment (such as getting some underlying facts about the case wrong), then use it. Otherwise, find some general noncontroversial areas where your expert and your opponent’s expert agree, get confirmation, and get him or her off the stand. This also limits the ability of your opponent to insist on a long redirect to hurt you all over again.

In terms of insulating your own expert, as mentioned in the “preparation” section, make sure your expert is well versed on the underlying facts and the legal standards. Make sure that your “mock” cross in preparation is as tough as you expect your opponent’s to be. Also, make sure that your expert has a sense of your opponent’s style (e.g., aggressive, seductive, sneaky, etc.) so that they are not thrown off their game, as well as tools to deal with them. Reinforce that no matter who the questioner is, all answers should be directed to the jury, and all questions (even on cross) are potential opportunities to talk to the jury.

Eric R. Harlan is a partner at Shapiro Sher in Baltimore, Maryland.

Copyright © 2019, 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).