Over the years, expert witnesses have become just as critical as attorneys in modern litigation. In light of this trend, attorneys have often asked themselves and others what to look for in the search for an ideal expert. This article addresses the relationship between experts and attorneys and offers guidance on how, through proper communication … Continued
Tips on Working with Expert Witnesses
In today’s world, it should be no surprise that many cases are won or lost on the basis of expert witness testimony. See, e.g., Matthew D. Taggart, “How to Prepare for and Manage the Depositions of Expert Witnesses,” Los Angeles Lawyer, Jul.-Aug. 2012. One of the biggest challenges for litigators may be how to best … Continued
Introduction: In the December 2015 Verbatim short, “Expert Witness,” director Brett Weiner makes an important point about expert witnesses in the context of accident reconstruction litigation. “Verbartim” short films use actual courtroom transcripts to make certain arguements. See Brett Weiner, “Verbatim: Expert Witness,” The New York Times, (2015); This article addresses accident reconstruction cases and … Continued
Undoubtedly, the knowledge that an expert witness has and conveys during testimony has a direct relationship to an expert’s credibility with juries. However, an expert’s level of knowledge does not, in itself, necessarily correlate with credibility. In fact, some jurors have reported feeling alienated by some experts who seem to be so-called “hired guns.” This … Continued
When attorneys retain an expert witness, many factors must be considered to ensure that the expert’s abilities are maximized before a court. The direct examination of retained experts provides lawyers with a critical opportunity to make their experts’ qualifications clear to a jury. This article discusses some techniques that practitioners may wish to use during … Continued
When an expert witness testifies and a case is lost, most people would believe, correctly, that the expert does not receive any blame, at least not in the legal sense. In fact, for years, the U.S. has followed a common law doctrine that quite simply did not allow expert witnesses to be the subject of … Continued
An attorney complied with Federal Rules of Evidence, gave disclosure of his expert witness, including any required written report or statement in lieu of a written report, and the case is moving towards a trial date certain.
Unfortunately, his expert witness unexpected passed away. Such a statistically improbable event can, and does, happen. An example is the high profile patent infringement case, Apple v. Samsung, where Apple’s initial damage expert witness passed away.
The goal on cross-examination of the opposing expert witness is not just to ask questions; it is to weaken credibility, reliability, and weight. Many litigators engage in cross-examination with an expert witness. Also note that even if an attorney is proficient in this approach, it may not be the most strategic one.
There are five key questions applicable to any expert witness and reasons why you should ask the opposing expert witness:
1. What materials did you review to form your opinion?
There are two goals in asking this question. First, to challenge whether the expert witness prepared using all available materials, whether supportive or contradictory to his theory of the case. Second, to find out if there were more materials available than was provided to you through discovery. Ideally, the response of the expert witness amounts to as much information in the same format as you were provided. This would put the two of you on an equal footing.
Because a multitude of methods exist by which video evidence can become tainted, evaluative measures should likewise include an equally diverse analysis. The complexities involved in establishing the authenticity, reliability, and credibility of video evidence requires comprehensive video analysis, which is more appropriately provided from an expert specialized in the field of video examination. However, legal support services employed for video analysis purposes, must be carefully selected such the expertise provided is both suitable and comprehensive, but also affordable.
Over the past year, not only have several circuit splits occurred, in cases where criminal defendants sue parties in civil court, claiming a tortious violation of their rights, but attorneys need to be aware of what is taking place in different geographical areas and the implications for their expert witnesses. Much of the controversy has centered on the standard of review for expert testimony on appeal. With respect to this, one case has caused many legal analysts to do more than merely raise their eyebrows in confusion: Wagner v. County of Maricopa, where the Ninth Circuit Court of Appeals admitted to an existing “open issue in the circuit and circuit split on ‘whether construction of a hearsay rule is a matter of discretion or a legal issue subject to de novo review.’” “Prospective: Ten Key 2013 Evidence Issues,” Federal Evidence Review, (Jan. 1, 2013) (citing Wagner, 673 F.3d 977, 980 (9th Cir. 2012).
To many attorneys, it may seem self-evident that a good expert witness, whether male or female, will be well-received by courts and juries, regardless of sex or gender. Certainly, in this new year and century, that is the hope. However, many studies, both anecdotal and statistical, have found that female expert witnesses, who are not coached to prepare themselves for gender biases, may have difficulties on the stand. Thus, it becomes imperative for attorneys to be aware of these biases, to train their experts appropriately, and to effectively counteract those predispositions, ultimately making their credible female experts even more effective in testimony. Moreover, there are strategies to help attorneys utilize their female experts in a way that makes them perceptually more likable than their male counterparts, so the techniques discussed herein apply to all attorneys and to coaching men and women, in distinct ways that will sway jurors and deter intrusive cross-examination.
Recent litigation news around the death of an expert witness at or near the time of trial is a poignant reminder about the critical importance of preparation for trial, including the use of understudies in case the star cannot take center stage.
Part I of this series discussed the different kind of witnesses who can testify in court and more importantly, and how to anticipate opposing counsel’s objections and best prepare.
Part II noted mechanisms attorneys can avail themselves of, to most-successfully train their expert witnesses before a case goes to trial.
This Part involves strategies that attorneys should be aware of, based upon empirical and sociological data, to help coach their witnesses and make their experts’ testimony appear to be as qualified and outstanding as the experts truly are.
Part I of this series discussed the different kind of witnesses who can testify in court and more importantly, the importance of understanding how placing an expert in the right category can assist attorneys in anticipating and avoiding opposing counsels’ potential objections to various aspects of expert testimony, but also understanding how to plan ahead, thereby making use of the Federal Rules of Evidence and other mechanisms for make the best possible use of expert witnesses.
Every attorney who has tried a case and retained expert witnesses realizes the value of expert testimony, but do all litigators truly understand the best ways to strategically utilize their experts and therefore, maximize their prospects for success? This article investigates some common ambiguities and approaches for attorneys with respect to expert witness testimony and, based upon several psychological studies and statistical analyses of jury behavior, offers strategic advice to litigators, allowing them to deploy their experts in the most valuable manner possible. To assist in comprehending both the basis and content of the proposed strategies in this article, several instances of expert testimony, involving the most effective ways to prepare for cases and use experts, will be discussed.2
It’s an important distinction to master: whether the testimony of the expert witness goes to a credibility determination to be made by the trier of fact or whether the testimony of the expert witness may be inadmissible as per a ruling from the bench.
Trial attorneys tend to be well prepared. Trial is a serious matter, generally conducted with advance notice. And a combination of factors, including the attorney’s own reputation, generally creates a suitable level of advance preparation. The corollary of this observation tends to be that the witness offered as an expert gets qualified and the testimony elicited on direct examination tends to get admitted.
How many times do we hear the advice to limit one’s resume to one page? But when it comes to written credentials, when does the resume become a “curriculum vitae” and do any page limits apply?
The general rule of thumb on resumes is that once a person begins publishing, lecturing, and training others, the resume changes structure into the “curriculum vitae.” The “CV” can be thought of as a bibliography of one’s career.
In California, nearly every type of civil litigation involves the use of expert witnesses and their testimony. However, the trial judge, as gatekeeper, can and often does preclude certain expert testimony from being considered evidence in a case. The clear dilemma for legal practitioners and litigants is to ensure that the expert testimony they utilize will not be excluded but will, instead, be considered reliable and persuasive to judges and juries.
Is there anything worse than the feeling when you receive the demand for expert witness information during litigation? Even if the demand is appropriately crafted to comply with applicable rules of discovery, you have tactical decisions to make.
First on the list of discovery response concerns is whether you have retained an expert witness. You may be in the uncomfortable position of heading into the discovery stage of litigation with only preliminary work undertaken in your selection process. Do you ask for an extension to respond or do you timely acknowledge you have not retained an expert but will update when you do?
Since the early 1990s, expert witness testimony has been on the rise and, as more experts have testified in civil cases, more challenges to their qualifications have ensued. Here, we explain two concepts concerning expert witnesses and testimony: (1) what the standard for a “qualified” expert is, and (2) how to best ensure that, when using expert testimony, you get the most qualified person possible.
When to hire an expert witness is a strategic decision trial attorneys take seriously. In some states in certain types of lawsuits, an expert witness must provide an opinion before a case can even be filed. In other cases and jurisdictions, it can come down to the wire of a court order to exchange expert witness reports. It can even be done during trial where a rebuttal is needed.
Dr. Donald M. May, Ph.D., a director in the Litigation and Corporate Financial Advisory Services Group at New York-based accounting firm Marks Paneth & Shron LLP, has released a statement citing the importance of including expert witnesses as consultants in preparation for litigation.
“In most cases, a law firm will bring in an expert witness near the end of the litigation process to report and testify.” Says Donald M. May, “But that’s not the most cost-effective way to use an expert.”