Getting Value From Your Expert Witness
Offered with respect, some advice for attorneys.
Good experts are not cheap. Here are some suggestions that might help you help your client to get the most from that investment.
Tell them the rules.
The rules of criminal and civil procedure are different in every state. What is discoverable? What is the expected format of the expert’s report, and is it even admissible in court? What are the limits of your subpoena power? How are trials scheduled? If you expert is from out of state, he or she will almost certainly not know your local rules of procedure, and, not being a lawyer, may not even know enough to know what they do not know. This might just mean the inconvenience of sending back a draft report to have the format updated, or the amusement of having an expert in deposition constantly saying “yes, that’s in my report” without realizing that the report won’t be entered into evidence. But sometimes the consequences could be more serious, like the rejection of the expert’s report, the accidental exclusion of important facts, or significant unnecessary expenses for the client.
Start Early
Good analysis takes time, and several passes over the data. Work done on short notice is likely to miss important patterns and details. And maybe after a first review the expert finds that your evidence is lacking. Maybe you need to issue more subpoenas to get the evidence you really need. Maybe the opposition’s production is obviously incomplete, something fairly common in criminal defense cases. Maybe the expert’s opinion does not support your case, but in your haste you already disclosed him or her as a witness. For all of these reasons, you expert needs to be brought into the case as early as possible. Even eight weeks before trial may be too late in a lot of jurisdictions. And for all of these reasons, you need to be responsive to your expert’s questions and requests.
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Experts risk their reputations when they submit weak reports or enter the witness box unprepared. Any mistakes or inconsistencies in their work may be used to impeach or discredit them in some future case, and a poorly defended Daubert challenge can end an expert’s career. Respect the fact that, to some degree, your expert is also on trial, and good experts may refuse to testify if you are not giving them the time and support that they need.
Give them the tools they know they will need.
You may plan to keep your direct examination short and simple, but the opposition may have other ideas. Your expert probably has a good idea of where the opposing counsel can make a lot of noise, and probably has some specific materials in mind that will shut down that noise. But your expert cannot enter those materials into evidence, and your expert cannot quote documents or reference materials that are not already in evidence. If your expert points out some particular material and says, “Be sure to get this in”, then please do it, or at least explain why you won’t.
Be willing to learn.
If you were interested in technology, you probably wouldn’t be a litigator or a defense attorney. I get that and I respect that. But just a little technical knowledge can help you do a much better job cross-examining an opposing expert, or let you recognize when the direct testimony of that opposing expert is misleading or irrelevant so that you can raise and argue an objection. A good expert will support you in learning what you need know for a particular case, efficiently and painlessly. An expert who cannot do that for you will not be able to do it for the jury, either.
Summary
Technical experts are not lawyers. Lawyers are not technical experts. To work together effectively, and deliver the best value for the client, both sides need to be ready to learn a little and maybe step out of their comfort zones.
