Four Tips for Preparing an Inexperienced—Yet Qualified—Expert Witness in Commercial and Business Litigation

In commercial and business litigation, expert witnesses are frequently called on to offer opinions relating to the value of a business, a business’s lost profits, and other topics involving forensic accounting. While a lawyer may want to retain a veteran expert with extensive experience testifying at deposition and trial, practical considerations like expense, geography, and time may require a lawyer to hire an expert that is inexperienced as a witness but highly qualified in his or her field of expertise. In fact, there are benefits to retaining an expert with little or no experience testifying. Such an expert will not have prior opinions or testimony with which to be impeached nor can such an expert be described as biased toward any particular view or position. Such an expert will, however, require careful preparation. This Practice Point aims to identify some practical tips for preparing an inexperienced expert witness in commercial and business litigation, although the tips are applicable to expert witnesses more generally.

1. Engage Experts Early

In most cases, a lawyer should have a handle on the issues that require expert testimony early in the litigation. Early identification of potential experts ensures that a lawyer finds a competent expert with qualifications well-suited to the needs of the case. Not all forensic accountants or valuation analysts do the same type of work. A lawyer must be familiar with the specific issues on which expert testimony is needed, clearly explain those issues to a potential expert, and determine whether the potential expert is (1) qualified to offer the needed testimony and (2) likely to present as a good witness.

2. Educate the Expert on His or Her Role

After retaining an appropriate professional to serve as an expert, a lawyer should educate the expert on his or her role in the litigation. At the outset, a lawyer must ensure that he or she understands the rules relating to the scope of expert discovery, what is protected by the work-product doctrine, and what is discoverable. The lawyer must make sure the expert understands these rules as well and that the expert further understands how to communicate with the lawyer. A lawyer should discuss the central issues of the case with the expert, keeping in mind the varying jurisdiction-specific rules for the protection of these communications. It is important for an expert, particularly an inexperienced expert, to understand how his or her testimony relates to the case more generally and to not overstep the limits of his or her expertise.

3. Role Play the Expert’s Deposition

Many professionals serving as an expert for the first time may have anxiety ahead of their deposition. The format and procedure of a deposition are likely unfamiliar. The efficiency of an expert’s testimony is based not only on what the expert says but also how the expert presents that testimony. A lawyer should spend sufficient face-to-face time with the expert to prepare the expert for what to expect at the deposition. By the time an expert is scheduled to be deposed, a lawyer should have a good idea of the issues or weaknesses with an expert’s anticipated testimony. A lawyer should sit down with the expert and role play the entire deposition, including the tough questions expected to be asked by the other side, again keeping in mind the varying jurisdiction-specific rules for the protection of these communications. It can also be useful to film an expert to show the expert how he or she looks while testifying, providing a chance to address any issues with the expert’s presentation ahead of the deposition.

4. Debrief the Deposition to Prepare for Trial

Following the deposition, a lawyer should debrief with the expert, identifying what went well and what could have been addressed better. While it can be difficult to change substantive testimony from a deposition at trial, aspects of the expert’s testimony can likely be refined along with the expert’s presentation. This exercise will not only better prepare the expert for testifying at trial, it will educate the expert on how to be a better witness in future cases.