Civil Litigation Legal Topics

5 Steps to Preparing an Expert Witness to Do Battle

What good will an expert witness do for your case if he or she is not adequately prepared? Not much. Having a prepared expert can make all the difference in your case, and it’s up to you to make sure your expert is fully prepared to do battle for your case.

Preparing your expert witness to testify should begin right away, so by the time you have to designate expert witnesses under CCP §§2034.210-2034.310, you’ll have determined whether your selected experts have jury appeal, can respond to directions, can explain their areas of expertise clearly to the jury, and can stand up well to cross-examination. Although it may have worked for you in school, last-minute cramming with your expert is not a good way to prepare the expert to testify persuasively.

In addition to working with the expert on preparing his or her substantive testimony, make sure you have fully explained deposition procedures to the expert. Even with experienced experts, explain how the expert’s testimony fits into the overall framework of the particular case and exactly what’s expected of the expert at the deposition.

Here are 5 important steps to preparing your expert to testify successfully:

  1. Familiarize your expert with deposition procedures. When dealing with relatively inexperienced experts, deposition preparation should include the same information that’s covered with lay witnesses, i.e., that the expert will be under oath, the expert should be sure to understand a question before answering it and can ask for clarification if necessary, and the expert should not talk at the same time as another person because the reporter can’t transcribe more than one person’s words at a time.
  2. Explain the purpose of objections. If the expert is inexperienced as a witness, explain the purpose of objections in lay language. Explain that objections may be made to the form or the substance of questions. If an objection is made only to the form of the question, the expert will be permitted to answer. Tell the expert to listen carefully to the objections because they frequently contain clues that indicate what the expert should do in responding to questions or give the expert a basis for not answering questions. For example, if you object to a question as vague and ambiguous because it is indefinite about time, the expert should be encouraged to explain his or her inability to answer the question as phrased because of the vague time frame. 
  3. Make sure your expert knows the players. The expert should be able to distinguish friend from foe, i.e., he or she must know which attorney represents which party and how each attorney’s interests coincide with or differ from those of the expert’s employer. The expert must distinguish when to be wary and when not to frustrate the efforts of an ally. Also, give the expert each party’s expert witness disclosure list so the expert knows who are the opposing and allied experts. 
  4. Prepare your expert for counsel’s habits and idiosyncrasies. Lawyers use various tactics in examining witnesses, ranging from charm (in hopes of getting the witness to drop his or her guard) to abuse (in hopes of intimidating the witness). Prepare your expert witness for any tactics you know the opposition is likely to use. For example, opposing counsel may ask the expert a long list of questions that the expert knows nothing about, either because the questions have nothing to do with the case or because they concern areas that are unrelated to the expert’s role in the case. Counsel your expert not to be embarrassed or disconcerted to repeatedly answer, “I do not know.”
  5. Tell your expert not to argue with other counsel. Because expert witness depositions are concerned largely with opinion testimony, the risk of argument is greater than in the depositions of factual witnesses. Instruct your expert to resist the temptation to argue with the other lawyers, particularly if the expert is disputatious by nature. Tell the expert that his or her credibility and ability to persuade may be undermined if he or she is perceived as an advocate; and, when tempers flare, the expert is more likely to blurt out a damaging or poorly conceived answer.

A successful case often hinges on strong expert witness testimony, and getting the most out of your expert witness’s testimony begins with the expert’s preparation.

For everything you need to know about expert witnesses and preparing them for trial and deposition testimony, including a handy checklist for preparing your expert, turn to CEB’s California Expert Witness Guide, chap 12. Also check out CEB’s program Preparing and Examining Expert Witnesses: Reports, Depositions and Cross-Examination, available On Demand. For general witness preparation tips, go to CEB’s California Trial Practice: Civil Procedure During Trial, chap 5.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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