Picture this: It’s your first day of trial. You have your opening statement outlined and are ready to go. Beside you, you have your client, who is ready to shine after hours of prepping with you. You have your binder of cross-examination outlines in front of you, with deposition transcripts highlighted just in case there is an opportunity for impeachment. And you have your expert witness, who is sitting behind you. Your expert has spent years becoming the best in the field and has testified in numerous trials before this one. You are confident in your expert as this is the expert’s craft and what the expert was hired to do. The expert does not need the trial prep; the expert is a pro.
Fast-forward to three days later when it is your expert’s chance to take the stand. The other side objects to lack of foundation when the expert discusses facts not admitted into evidence. The judge sustains. The expert—rattled and shaken—proceeds to indulge in industry jargon to overcompensate, which loses the judge and the jury. After the expert’s soliloquy, you try to ensure your crucial point is made and sit down, only to feel uncertain whether anyone was even listening. You wonder if you even needed to present the expert at all after what happened.
Unfortunately, the above can be a common pitfall. With the grueling preparation needed for trial, expert witnesses tend to fall to the wayside as they are seasoned professionals. But even the most experienced expert does not know your case (or your opponent’s) like you do. Next time you are preparing for trial, be sure not to overlook the importance of preparing your expert witness and consider the following.
Before your expert witness enters the witness box, you should ensure that the facts needed have already been presented. Indeed, Federal Rule of Evidence 703 requires that an expert base his or her opinion on facts or data that the expert has been made aware of or personally observed. You do not want to run the risk of asking your expert about a document the expert has not seen or that has not been admitted into evidence. Trials can be fluid, so a good understanding of what needs to be presented before an expert testifies can help if there is a last minute schedule change of the witnesses. A good tip is to consult with your expert long before your exhibit list is due, and make sure all the critical documents are on the list.
Read and reread your expert reports when preparing direct examinations of fact witnesses. You want to ensure that the fact witness evidence covers all areas required to lay the foundation for your expert’s testimony. Be mindful that your opponent may object to hearsay (in the form of documents or witness interviews) that were provided to the expert but are not in evidence at trial. Expert opinion based on hearsay may be inadmissible or entitled to little or no weight.
Before trial even begins, you should consider the weaker areas of your chosen expert’s anticipated testimony and credentials. Has the expert been disqualified or limited before? In what areas has the expert previously been qualified and how does those differ from the areas in which you wish to qualify the expert?
Does the expert have specific knowledge and expertise in the industry at issue? Does the expert have sufficient facts or data to render the opinion? Is there a transcript of prior testimony in other cases available for review that may be instructive on the issues in the case or how the expert may fare on cross-examination?
Consider how to instruct your expert. Are you asking the questions that will be required at trial? Are you framing the questions in a manner that is unbiased and will preserve the credibility of your expert on the stand? What assumptions have you asked your expert to make, and are they reasonable? If the assumptions are not proven prior to your expert’s testimony, how will the expert’s opinion be affected?
Consider what documents to provide your expert. Has the expert been provided with the same records or documents that your opponent’s expert relies on? Has the expert been provided with updated documents or records since writing the report or since the deposition?
At trial, consider whether you want to bring any potential pitfalls out in direct examination and explain them away, or whether it is better to prepare your witness for cross-examination. Most importantly, do not allow your expert to go out on a limb. If there is an error in the report, admit it. If there is time before trial, consider having the expert address the error in a supplementary report. The most important thing is that the expert maintain credibility. If an effective cross-examination shows the trier of fact that your expert cannot be trusted, all of the expert’s testimony goes out the window.
Trials can be lengthy, especially for a jury. Even in a bench trial, veteran judges grow weary. But with an expert witness, you have a professional on your hands, meaning an opportunity to put on a show for your audience. A prep session with your expert is crucial as it can reveal where the expert lags or becomes repetitive. It is also a good idea to break up the expert’s testimony into bite-sized pieces, especially if the subject is dry or complicated. A long lecture on accounting principles can put even the most engaged listener to sleep.
To alleviate these issues, a well-done—and brief—PowerPoint presentation with eye-catching graphics can help focus your expert and audience on the key points in the testimony. Sometimes a simple bar graph can really speak volumes to a judge or jury and help them to avoid getting lost in the numbers. Depending on the length of the trial and complexity of the matters at issue, a simple timeline of key events can also help orient a judge or jury. Consider also animation, diagrams, or photographs to help explain and visualize complex topics.
In the United States, these considerations should be taken into account early. Otherwise, your colorful graphics may not make it to the jury.
In a bench trial or arbitration, you may wish to forgo the time and expense of putting on your expert and submit competing reports instead. In the United States, expert reports are generally deemed hearsay without an exception. But some judges or arbitrators allow these reports to be submitted based on the parties’ stipulation or agreement. While this practice may avoid spending time in preparing your expert, a lot can be lost in this tactic. First and foremost, you may lose your opportunity to cross-examine your opponent’s expert. Second, the report may include attachments to data or studies that have not been independently verified or authenticated. Third, the report may include facts or testimony disclosed in discovery but not through the course of the trial.
In some cases (particularly in arbitrations or bench trials), it may be appropriate to agree to forgo direct examination and file the reports as the expert’s direct evidence. However, this can be a lost opportunity, as a focused and short direct examination can be a very powerful way to communicate the expert’s core opinions and conclusions to the trier of fact.
In the United States, fact witnesses generally cannot observe the trial before they are called to testify. But “the Rule,” as it is called, does not apply to experts. This rule is applicable elsewhere. For instance, in most Canadian jurisdictions, judges frequently issue a witness exclusion order, but they exempt experts and client representatives. Thus, if the case justifies the expense, it may be a good idea to have your expert observe the trial—or at least the other side’s expert testimony. Observing the trial allows your expert to see how the facts really unfold and to understand what issues the judge or jury might really want to hear about. It also allows your expert to assist you in preparation for cross-examination. A good expert should provide sample questions or bullet points for you to cover. A good expert can also send you literature or studies to consider using in your cross-examination of the opponent’s expert. And, before closing your cross-examination of the other side’s expert, you should ask for a moment to confer with your own expert to make sure you hit all the key points.
Next time you have a trial, think of the above before preparing and presenting your expert witness.
