September 19, 2018 Articles

Four Expert Tips for Dealing with Expert Witnesses

Dealing with an expert can seem intimidating to young lawyers, but it doesn’t need to be!

By Roula Allouch

Dealing with an expert can seem intimidating to young lawyers, but it doesn’t need to be! Follow these four solid tips to help boost your confidence level in your dealings with experts.

In the world of litigation, young lawyers often find themselves presented with new challenges and opportunities for growth as their practice expands and their experience level increases. One important step for young lawyers developing into seasoned litigators is learning to deal with expert witnesses and an expert’s deposition testimony. Regardless of what kind of expert you are working with—medical, engineering, product liability—the tips below are widely applicable and can be used in almost any instance.

The first “big” case I was involved in had to do with injuries claimed as a result of a fall from an allegedly defective ladder. I quickly found myself learning more details about ladders than I ever thought possible. I can still recall small details I learned in that case, including the surprising length of time a thorough expert could spend on a ladder inspection! In later cases I worked on, I encountered issues involving medical conditions, treatment options, and engineering components embedded in larger products. Having dealt with numerous experts on these files, I now see that, regardless of the subject matter (and regardless of how much or how little I know about the subject matter), my approach to the use of experts and their testimony is largely the same.

What follows are four key tips I have learned over the years that can help you increase your comfort level when dealing with experts:

1. 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 will ask myself what questions I need answered or addressed from my client’s perspective, and proceed on that basis. I find it useful to think ahead to the potential trial and consider what facts and evidence I will need to support the legal theories and arguments underpinning my case.

Some experts will be easier to locate than others. Putting in the effort early on, during the discovery phase of a case, will be time well spent for the client in locating and retaining an expert who can provide valuable insight during discovery and depositions of parties or other witnesses. Lawyers should feel comfortable reaching out to colleagues and others in their network for recommendations, depending on the subject matter and geographic region of the case. I have found my involvement in the ABA to be an added benefit in this regard. Multiple times on past cases, while searching for an expert in a different part of the country, I have reached out to friends and colleagues who I have connected with through the ABA for recommendations. Attorneys on my team were impressed by my network and my ability to locate experts in other locations so quickly.

2. It is worthwhile to take the time to learn more about subject areas outside of your comfort zone to enable you to engage in discussions with and questioning of experts. Lawyers should not feel too intimidated to ask the expert to explain technical terms or theories. Remember: If you as the lawyer don’t understand certain terminology or jargon, there’s a very good chance the jury won’t either. You will do your client’s case a service by providing the jruy with the additional context and explanation through your expert. An expert who is easy to understand will also be more relatable and more likely to connect with jury members.

3. It is important as the lawyer to remember that you are the one with legal knowledge of your case, and not let yourself feel intimidated by an expert, even ones who have a lot of expertise. The expert is there for a specific purpose, and you as the attorney are the one who has the underlying responsibility to put your client’s best case forward. As counsel, you will have a broad understanding of the whole of your client’s case, not just the aspect of it for which the expert has been retained. Lawyers should not take for granted an expert’s knowledge of or familiarity with the facts of a case, and should make sure they are available to the expert for preparation and to answer questions.

I learned the hard way that expert witnesses, like other witnesses, require thorough preparation, particularly in advance of a deposition or trial. Rather than assuming that an expert who has testified in the past will be fully prepared, set aside the time to prepare the witness and give the witness a “refresher” course. Having this kind of prep session with your expert close in time to when he or she will be giving evidence will not only help the expert feel prepared and ready, but it also gives you the chance to brief the expert on what to expect in terms of questions, demeanor of opposing counsel, and any other information relevant to your case that will help the deposition go smoothly.

4. Finally, particularly at trial, counsel should ensure that the expert’s evidence is entered in a concise but comprehensible manner. Expert witnesses are often at the top of their field and highly educated, but they may not always know how best to explain their expert opinion such that it can be readily understood by a jury. In instances where certain details are not crucial to a judge’s or jury’s understanding of the case, think about how to distill the issue to the crux of the matter, and prepare your expert accordingly so that he or she comes across as authoritative but understandable to the jury.

 

Roula Allouch is an attorney with Liberty Mutual Insurance Company in Cincinnati, Ohio.


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