Some lawyers decide at the beginning of a case that they’ll never be able to understand what the expert is talking about, and they make no effort to do so. Bad plan! Regardless of the expert’s skill, it’s the lawyer’s responsibility to make sure that his or her expertise is presented to the trier of fact in an admissible and persuasive way. To do that, the lawyer needs to understand the expert’s testimony and field of expertise. Here are four ways to educate yourself fast.
View the expert as a teacher. Eventually, you may want the expert to teach the judge or jury, but first learn from the expert yourself. Here’s how to do it:
- Ask questions. Ask when you don’t know the meaning of technical words or have no idea what the expert is talking about. Don’t worry if the same subject has been discussed or explained already. Just ask—even if that means burying your pride. If you don’t understand what the expert is saying, the average juror won’t either.
- Learn the relevant vocabulary. Virtually every field has its own vocabulary. You need to “crack the code” and learn enough words to converse intelligently with the expert. When the expert uses unfamiliar words, make the expert define them. If necessary, keep a list of words and definitions. Learning the jargon will make it easier to read the literature and become familiar with the subject, and it will give you added self-confidence when deposing opposing experts. Most importantly, it allows you to conduct successful cross-examinations of opposing experts, coach your own experts so that they testify in a way that the judge and jury understand, and act as a “translator” during closing argument to make sure the jury fully understands the expert’s testimony.
- Read necessary literature. Although talking with one’s own expert is probably the best way of learning about a new subject, reading about it will greatly improve your overall understanding of the field and ability to discuss and challenge the ideas and theories of the experts. Your expert can give you the name of a good basic treatise for general background and articles or papers dealing with the precise issue. You should also read all available reports and material already generated in the case before meeting with the expert. If you have questions about the meaning or significance of any of the information in those materials, use at least some of the time with the expert to have those questions answered.
- View tests, experiments, and inspections. If a case involves an accident or a crime scene that must be inspected, a condition that must be duplicated, or a series of physical tests that must be run, consider attending these activities. This will allow you to observe the expert in a setting other than the office or deposition room, develop a rapport with the expert, increase your knowledge of the field, and consider how you’ll use the evidence at trial. Of course, don’t get in the expert’s way—just observe and write down thoughts, questions, and ideas for later discussion.
For guidance from experienced trial attorneys on all aspects of dealing with your own expert, turn to CEB’s California Expert Witness Guide, chap 8. Also check out CEB’s program Preparing and Examining Expert Witnesses: Reports, Depositions, and Cross-Examination, available On Demand.
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