This is the second part of the four-part series on the challenges that trial lawyers face relative to expert witness testimony. Part One was written to help our understanding the impact of expert witness testimony. Part Two will discuss how to define and elicit persuasive testimony. Part Three will look into the conducting conflict check with the expert witness. Part Four will address the issue of being outspent by the opposition. In each blog, I’ll be raising the questions and proposing some answers.
Today, we’ll examine the manner of approaching the design and presentation of the expert witness testimony. Design, you say? If you’re asking the question, then allow me to suggest that the presentation of expert witness testimony is more than pulling out a yellow pad and starting at the top line.
When I say I’m ready to start “designing” the expert witness testimony, I mean that I’m sitting down with a blank white papers, and colored markers. My first set of notes consists of the most important elements that need to be established. Generally, I want the expert testimony to accomplish causation or nexus for the events. I mark it with a big red circle on my paper, but you can do what it takes to highlight the important items. It sounds too simple to be useful, but when you use each major element to generate its own separate page, and then adding some finer points, it allows you to prioritize and allocate the important elements in the expert witness testimony. You will need to go over what the priorities with the retained expert to check if the expert witness can indeed support your case. You might find that you will need to make adjustments based on the expert’s feedback, but you will have a stronger testimony because you consulted with an expert.
Once I have a designed testimony that the expert can support based on his or her expertise, I’m looking for the attack points. Where have I heard the criticisms from opposing counsel, their expert, or even the judge during pre-trials? I cannot overstate the importance that you not shy away from identifying the vulnerability points in your desired expert witness testimony. For most points, you will need to have a response in the ready.
When you find a vulnerable point in the potential expert testimony, as I do, too, you need to think about the specific person you have hired to serve as your expert witness. How does this person deal with pressure? Is the person rigid? Flexible? Serving his or her own agenda?
Without question the substance of the expert witness comes first, but the conscious or subconscious “likeability” of the expert witness might give you an edge. This is where it matters if you – the trial lawyer – know the community in which you practice and the profile of a typical jury for the type of case you are presenting. We present ourselves to a jury in a manner that is different than how we hang out with friends and family. Why? Because we are conscious of how we will be perceived by the jury. Don’t forget to put on those glasses in your consideration of your expert witness. The expert witness testimony can make or break your case.
By Paloma A. Capanna, Attorney at Law, Policy Analyst