Experienced Experts Need Prep, Too
Many attorneys prefer experts with testifying experience. While there are good reasons to want a court-hardened expert, the unfortunate notion that preparation for cross-examination may be skipped is not among them. Dr. Eric Cole, a very experienced expert, finds mock cross-examinations invaluable, “Going into a trial, attorneys will always prepare you for your direct, but I often have to ask and be very persistent on preparing for the cross-examination. Of course, I always read my deposition transcripts, and there is prep work I can do, but I will always push back and say, “Can we please have another attorney do a mock cross to make sure I am ready and consistent?” By integrating this practice into his preparation, Dr. Cole is able to keep his tone, pacing, and body language consistent. “That is why I like the mock. Essentially, I joke, I want somebody to be aggressive and yell at me, and I want to stay calm, cool, and collected. To me, [the mock cross] is more [about] the practice of the delivery than actually what you have to say.” Id.
Consider Going Deep on Prep
In high-stakes litigation or in unusual situations, going deep in preparation is invaluable. Expert Mike Slinn recalls his first time as an expert at an international tribunal, where the team of attorneys set him up for success:
In this particular case, these attorneys were outstanding. They had a quarterback, the guy who was calling the shots at this law firm, who has got to be one of the top guys around and he wasn’t shy about sharing his experience and his advice. . . . There were seven experts on our side and there was one expert, myself, who would speak for the combined opinion of all of us. At the end of the case [the expert for the other side] and myself were brought before the tribunal of five and they fired questions at us and we had an opportunity to respond free form. We would start by letting each other speak, and then . . . we would get into interrupting and discussion, and this is what the tribunal wanted. They wanted [to get to] the real truth and they were just going to grill us until we believed something was right. . . . You had to be fast on your feet and really confident in your facts . . . . The other expert was over-confident. He was confident to the point of being cocky, and he said some really stupid things and I capitalized on that.
To get Slinn into this excellent position, the team of attorneys took the time to drill him thoroughly:
We were up until 2:00 in the morning going over the material and the attorneys . . . on my side had their mini tribunal. . . . I failed a lot in front of them, but that was okay because they would coach me. So, when the real thing came it was easier than what they had put me through. They deliberately over-practiced, and that is the way to do it. Nothing succeeds like excess.
Teach Your Expert Strategies to Stay on Message
Depositions and cross-examinations come in all styles, and telling your expert what to expect keeps the expert from failing in the face of new challenges. Dr. W. Richard Laton tries to think strategically during his testimony. Beyond considering his words carefully, he also tries to figure out how to guide the deposition into the areas he wants to address instead of being guided where the opposing counsel would like to go. He also finds a wide array of styles from opposing counsel that need to be addressed differently: “Some are more combative. Others are trying to . . . become your friend. As my lawyer pointed out, he is really not your friend. They can kind of go from mean to very nice.”
Class Action Experts Need Additional Prep
Professor Karon notes that class action witnesses need some additional preparation: “In non-class litigation, experts tend to testify relating to the substantive elements of plaintiff’s claim, such as duty of care in a medical-malpractice class action. In class-action litigation, in addition to merits experts, class experts are often essential to demonstrate that factual predominance exists, such as in the case of classwide impact in antitrust class actions.” Email from Daniel Karon, Re: Request for quotes on expert preparation, to author (Jan. 3, 2025).
Using a Team for Expert Prep
Some attorneys go further in prepping their witnesses. John Trimble, an attorney focused on catastrophic, complex, and class action litigation, uses an extensive team but is careful to keep his client apprised so that there aren’t any billing surprises:
I use PR consultants and jury consultants to prep witnesses. . . . [I]t is part of the thematic preparation of the case. I like to have a PR consultant and a jury consultant, particularly a jury consultant, looking over my shoulder remotely because I do not want attorney-client privilege to be an issue. I often like to videotape my witnesses as I prep them to give depositions or as I prep them to testify at trial. I may want the jury consultant to watch the video and give me input as to how I ask my questions, the words I use, and the order in which I ask my questions, so that I can best prep my witness to give a truthful and credible testimony that fits the theme that we have.
There is an expense involved in hiring consultants. Part of the lawyer’s role is to make sure that the client understands from the very beginning how they are going to use the consultants, not only at the beginning but throughout the case, and how important it is. We are living in an age right now of tight legal budgets and it is not an easy sell because of the expense. The benefits are so critical that the lawyer must make the case to the client, “Hey, I need these people and here is why I need these people.” You just cannot assume that the client is going to go along with it. They will push back unless you convince them that this is critical.
Professor Karon offers a timely reminder about using a larger team: “I’d be concerned about non-attorneys participating in the expert-preparation process because of privilege issues. If a jury consultant has some thoughts about the expert’s testimony, they can tell me, and I’ll relay them to the expert.” Email from Daniel Karon, Re: Request for quotes on expert preparation, to author (Jan. 3, 2025).
Preparation = Dependability
A well-prepared expert is a dependable expert, and one who will perform even if he or she is not enjoying the experience. Expert Kevin Quinley puts it poetically:
[E]ven with all that, deposition and testimony is an anxiety-producing experience even if you have done it many times before. If you are not nervous or do not have some anxiety then good for you, but I say everybody has butterflies. The key is to make them fly in formation on game day, and I say I enjoy depositions the way I enjoy beating my head against the wall. It feels so good when you stop.
To do your best for your client, thoroughly prepare your expert. It isn’t cheap, but it pays dividends via a dependable outcome.
