Expert trial testimony

It can be easy to overlook the fact that experts are not attorneys, and may not be naturally comfortable in a courtroom environment. The best way to help your expert and ultimately, your client, is to discuss all the relevant legal aspects of their testimony, as well as any nuances they should be aware of when presenting their testimony to the jury.

No matter how many times an expert has testified at trial, being grilled during cross-examination is always incredibly stressful. The best way to prepare your expert for facing difficult questions on cross is to practice them with your experts. There are a number of considerations outside of the substance of witness testimony — such as appearance, demeanor, and word choice — that can and will have an influence on the jury.

Preparing an expert for trial is stressful. So it is easy to forget the little things that can make a big difference in the overall trial presentation. There has been an explosion of the use of technology in courtrooms in the past few years.

The most difficult part of dealing with an expert witness is that trials are unpredictable. However, preparing your expert witness will help reduce uncertainty. Furthermore, careful and meticulous preparation of your expert witness will help you catch many potential issues early on and ensure an overall smoother trial process. By the time expert reports are due, you will already have been well on your way to preparing the expert for testifying at trial.

If an expert report is required, you will also need to consult the applicable civil procedure rules governing the report's content. The importance of the expert report cannot be overstated. Although the expert report is generally inadmissible hearsay, it will nonetheless form the basis of the expert's deposition and trial testimony.

The Federal Rules of Civil Procedure specify that the report must include: 1 a complete statement of all opinions the witness will express and basis and reasons for them; 2 the facts or data considered by the witness in forming his opinions; 3 any exhibits that will be used to summarize or support the opinions; 4 the witness's qualifications, including a list of all publications authored in the previous ten years; 5 a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and 6 a statement of the compensation to be paid for the study and testimony in the case.

Remember that the main point of the expert testimony is to support the theory of your case and enhance its presentation. While an expert will generally have a far greater grasp of the technical or scientific topics at issue in the litigation than you, remember that you are best situated to educate the expert on the facts and applicable substantive law, without which the expert cannot present his or her opinions persuasively.

Before the expert begins drafting a report, you will need to spend time revisiting the facts and legal theories with the expert. Additionally, you will want to spend time with the expert identifying with precision what their opinions will be; the methodologies the expert will use; documents and evidence that support their opinions; any assumptions underlying their opinions; and any potential lines of attack. While you will want to maintain an open line of communication with your expert, you will need to be aware of the limits on protected communications with experts.

The Federal Rules of Civil Procedure, for example, protect drafts of any expert reports, regardless of the form in which the draft is recorded. Additionally, the rules also provide that, although "communications between the party's attorney and any witness required to provide a report" may be protected work product, such protection is limited "to the extent that the communications: i relate to compensation for the expert's study or testimony; ii identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or iii identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.

You should be aware of these limitations when communicating with a testifying expert and take care to segregate protected communications from non-protected communications such as communications containing facts, data, and assumptions. You should also bear in mind that communications with experts, even if protected, may still be subject to production if "substantial need" for such materials is shown and the party seeking disclosure cannot "without undue hardship" obtain the substantial equivalent information by other means.

Of course, if the case is in state court, you will want to consult the applicable state and local rules. For example, in Louisiana, whether draft expert reports, notes, and communications are discoverable hinges on whether they reveal the mental impressions, opinions, or trial strategy of the attorney for the party who has retained the expert to testify. Additionally, such materials will become discoverable if the expert relies on them in forming his or her opinion.

Becoming familiar with the applicable rules regarding discovery will help you avoid inadvertently waiving protected information. Once expert reports are issued, any party may depose your expert.

Though preparing an expert witness for deposition is no different than preparing fact witnesses in most respects, there are some differences. The expert report will be the roadmap for the deposition and preparation should track the expert report closely. Prepare the expert to provide his or her opinions in a concise and confident manner and avoid being rattled.

When working with your expert on the expert report, you must have these goals in mind and ensure that the expert report is structured in a way that facilitates your expert's testimony. Depending on the case's complexity, you may want to reserve several days to prepare your expert witness.

As with any witness, be sure to remind your expert that the most important rule to remember is to tell the truth. Additionally, even though many experts are familiar with deposition procedure, you should not rush through deposition process basics.

If possible, you should prepare the expert in the same room where the deposition will take place. Discuss details such as where the expert, counsel, court reporter, and if applicable videographer will be seated or situated. Do not forget to give the expert an opportunity to ask questions before launching into the substance of the deposition. Additionally, as with any witnesses, you will want to instruct the expert witness to listen to each question carefully; request clarification if needed; think before responding; and pause long enough to allow you to object to a question if needed.

Remind the expert to answer only the question asked. For example, in explaining a herniated or ruptured disc, an orthopedic surgeon may analogize it to the squeezing of a jelly donut. The donut punctures and the jelly escapes. We can all relate to the mess that is created afterward!

Simple analogies and simple language are the hallmark of effective expert testimony. Shorten explanations to spare the jury all of the confusing terminology, concepts and background information which you had to wade through in preparing for trial. If you do, the jury will reward this consideration with greater attentiveness and, perhaps, a favorable verdict.

During expert testimony, make every effort to keep the jury from snoring. A sleeping jury will not catch the compelling testimony your expert will provide. After establishing rapport with the jury during the qualification stage, the expert should maintain eye contact with the jury and, in appropriate circumstances, add a touch of humor or personality to the presentation. One method of adding to the interest of a presentation is through the use of demonstrative evidence.

Show 'n' Tell kept all of us awake as school children. The same principle can be used to keep the jury awake in the courtroom and to create memorable impressions of the evidence.

Regardless of the quality of your expert, few expert witnesses can capture the jury's attention without models, diagrams, audio or video recordings, charts or photographs as an aid to understanding. Like any effective classroom presentation, expert testimony is far more powerful when the expert can show the jury exactly what he means and appeal to more of their five senses. Indeed, effective use of the blackboard can add life to an otherwise dull expert presentation.

The use of demonstrative evidence also allows the expert to get physically closer to the jury by approaching easels positioned next to the jury box or by holding models or photographs in front of jurors so that they can see precisely what he means. When conducting your direct examination of the expert, organize the presentation to allow for at least one diagram, object, or other type of demonstrative evidence for every ten to fifteen minutes.

With each visual demonstration, you will renew the jury's interest and attention, reduce boredom, and keep jurors awake long enough to learn from your most crucial witness. Although direct examination should allow your expert a full opportunity to explain the case in a light most favorable to your client, cross-examination is his best opportunity to score points with the jury.

After a successful presentation on direct examination, jurors inclined to believe the expert wait patiently for the roof to cave in above him on cross-examination. If it does not, and the expert has escaped unscathed, his mission with the jury is accomplished. Otherwise, he may limp away from the witness stand having unwittingly done considerable damage to the party calling him. In preparing your expert for cross-examination, you should thoroughly grill your expert with numerous, hard-hitting cross-examination questions designed to attack every aspect of his testimony and impeach his credibility.

Encourage your expert to pause before answering each question, reflect carefully on the scope of each question and -- after counting to three -- answer the precise question asked in a calm, deliberative manner. Even where the jury does not understand the substance of testimony or the precise points being made on cross-examination, they pay very close attention to the expert's demeanor in assessing his credibility. By controlling emotions effectively, even experts who have fallen prey to substantive traps may emerge from the process looking untouched by attempts to impeach credibility.

If you are cross-examining the expert, the difficulty of your task depends upon the strength of the opposing expert. While you may score points at many levels with a variety of techniques, the stellar expert is always difficult to attack. Thus, in some cases, your goal in cross-examination may be to make a few key points and get the witness off of the stand quickly.

Emphasize the favorable aspects of her testimony - even where the expert renders an unfavorable opinion on the bases of certain factual assumptions, you may be able to elicit more favorable testimony by modifying the facts to conform more closely to your theory of the case.

Moreover, where an expert renders an unfavorable opinion on certain liability issues, she may be helpful in substantiating damages and, in that capacity, actually become your witness.

Impeach the field of expertise - provided that you do not call an expert from the same field, you may be able to attack the legitimacy of his profession. This has been attempted, with varying degrees of success, in impeaching chiropractors, handwriting analysts and a host of other experts which the court has nonetheless accepted as witnesses.

Assuming that the court is unlikely to deny your opponent's proffer of the expert, such an attack may be more effective on cross-examination than on voir dire.

Impeach the expert's qualifications - unless your opponent calls the latest Nobel prize-winner, there is normally some room for emphasizing gaps in education or relevant experience. However, you should not overstate this attack against experts who are clearly qualified to testify.