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.
Part II of this article discusses ways in which attorneys can best prepare their expert witnesses before a case goes to trial, by determining what expert testimony should consist of, how to increase the odds of prevailing through organizational techniques, record-keeping strategies, and more.
Pre-Trial Strategies and Guidelines to Prepare Experts and make the Most out of their Proficiency and Capabilities
(1). Record-Keeping, Organization, & Reports: Although conventional wisdom may say otherwise, many attorneys find themselves, even with the best experts, ill-prepared for a trial, simply because they do not maintain adequate documentation and well-structured records. Attorneys must work together with their experts to create these records and reports. It is important that attorneys work quickly and comprehensively on these matters, because regardless of whether or not a case goes to trial, certain data by experts are discoverable and/or may be used in a deposition. Experts must know what to expect, and their attorneys must assist them in creating well-outlined and coherent documents and records together. Attorneys should advise their experts to understand why appropriate and adequate record-keeping is essential in pre-trial preparation. Attorneys must work with experts to develop a highly-organized, uniform, legible, and coherent method for generating reports. Certainly, these records and reports are useful at trial and may inhibit opposing counsels’ ability to be extremely critical and inquisitive, with respect to potential gaps or inadequacies the opposition may believe they’ve located and would, otherwise, plan an incredibly combative and difficult cross-examination. However, more importantly, when attorneys create a game-plan and actually tell their experts to put such theories in writing, this strategy is incredibly useful to clarify, organize, and commit to memory the line of reasoning that would be best put across. Moreover, attorneys who work closely with their experts to ensure a comprehensive set of records and theories are put together may be able to avoid trial entirely; if opposing counselors realizes the logical, well-structured, and clear argument being advanced, they may strongly consider foregoing trial altogether and making a settlement, once they recognize that it is much more difficult to poke holes into well-established and well-remembered expert theories, which are supplemented by strong, written information. Finally, if an attorney works with experts, who are able to supplement customary forms and checklists with their own records and thought processes, potentially confusing methods or analytical conclusions can be simply explained, helping to augment an attorney’s pre-trial strategy and to let the opposition know early that the experts being retained not only know what they are doing but can easily make clear the credibility and degree of certainty that will come across to a judge, jury, or the opposition.
(2). Visual Aids: Diagrams and visual tools are often incredibly useful for attorneys to have their experts draw up, for a number of reasons. First of all, condensing an expert’s testimony into a comprehensible and coherent visual aid will augment the expert’s potential testimony, increase his or her credibility and, if necessary assist the witness in recalling important parts of their claims that should not be omitted. As perhaps best expressed by an attorney and editor of the “Journal of Accountancy:
[A]ttorneys make checklists or chronologies to depict events, but lists alone will not meet the demands of complex [litigation since experts and counsel cannot determine the course of events, what is important or what is missing without something tangible pulling all the pieces together. A visual approach makes it possible for the…expert witness to completely integrate the case on one document by:
Showing what happened.
Identifying both the expert’s and opponent’s claims.
Highlighting relevant data.
Identifying missing data.
Identifying key areas and responsibilities of the client, counsel and experts.
Creating a damages model.
Providing a way to challenge and test the other expert’s case to achieve optimal results.
One advantage to a visual approach is that the [expert] can display the entire case on a single page. The graphic analysis flows logically, provides facts, theories and claims and highlights what information is missing. With a detailed graphic as a common point of reference…experts and counsel can then develop a list of exhibits…2
(3). Meet with Experts Early and do a “Run-Through”: Attorneys must understand their experts’ data and analyses about a case, for a number of reasons. First, the less the expert or attorney is forced to rely upon rote memorization, the less of an ordeal potential cross-examination will be. Even when opposing counsel asks an expert questions from “left field,” the knowledge and recollection of the expert will be so thorough and well-prepared that they will be unlikely to falter under even the most rigorous cross-examination. Attorneys should always have several meetings with their experts to review the testimony to be given. The point of these meetings is not for an attorney to spoon-feed experts their testimony, but rather, for both parties to feel comfortable with the clarity that experts will be able to provide after these “run-throughs,” what the experts will be substantively testifying about, and, finally, to reach an agreement as to what terminology the experts will utilize to best express their arguments. Such meetings also provide both the expert and the attorney to predict what the witness will be asked, once a deposition or trial takes place. Perhaps the best way of explaining the advantages of attorneys and experts meeting and developing a cumulative analysis, such meetings will “display…both sides of the case, including claims, counterclaims and factual interpretations. [The attorney and expert can then] [i]dentify strengths and weaknesses [of the case, and] [f]ocus on discussing the points that will help prove your case or disprove the opponent’s.”3 It is critical for attorneys and experts to carefully plan and consult, prior the time expert depositions or testimony are scheduled. Moreover, the attorney that retains an expert is obliged to informing the expert, regarding prospective traps and techniques opposing counsel may deploy. When experts testify, they place their reputations on the line, so early and frequent consultation and preparation is a necessity. Recent studies have noted that unprepared experts are less likely to be found persuasive or credible.4
(4). Attorney and Expert Witness Education: Two forms of education have been found to be critical in pretrial preparation: attorney education and expert witness education. Attorney education is simple but often overlooked. What is critical is that attorneys are keenly aware of both “the strong and weak points of the witness’s testimony and becom[e] thoroughly familiar with the anticipated testimony to avoid surprises (Aron & Rosner, 1998; Brodsky, in press). Attorneys should interview and learn about each witness’s case-related knowledge in full before deciding”5 what kind of testimony an expert should give or, contrarily, determining that particular expert may be an excellent consulting witness but not one that would be beneficial to a case if put on the stand. The witness education element is still the responsibility of the attorney on a given case, but it only requires strategies that are fully logical and make will, therefore, make the most out of expert testimony. Attorneys must orienting experts to the specific trial process and physical layout of the courtroom, review prior statements made by experts, and ensure experts comprehend what their testimony should concern. While many experts have testified in court time and time again, it is a mistake for an attorney to skip the specific aspects of expert witness education that can be critical. For example, expert must “know what to expect during direct examination. Attorneys should review the actual statements [expert] witnesses provided in previous statements (e.g., depositions, police statements) prior to testimony.”6 It is the attorney’s job to make an effort to foresee questions experts will be asked by opposing counsel. Finally, there are two additional ways that attorneys can make the most out of their experts, through witness education. First, if possible, attorneys should evaluate prior, video evidence of their experts’ testimony at previous trials. In this way, attorneys can catch potential problems and assist their experts in providing top-notch services. Second, attorneys must give their experts feedback about the potential theories and testimony to be put forth and, if necessary, role-play with their experts, to ensure that their experts are as comfortable as possible. The less anxious or surprised an expert witness is the better job he or she will do when it comes time to testify.7
Attorneys have a wide variety of tools at their disposal to ensure that, during pretrial preparation, they get the most information out of their experts, prepare for opponent strategies, and create a thorough, consistent, and clear record. Each of these techniques can help attorneys tremendously and when it comes time for an expert to be deposed or testify, these strategies will help immensely.
2 George L. Johnson &Cynthia Waller Vallario, “An Expert Witness can Make or Break a Case: How Instructional Visuals can help CPAs in Litigation Support,” Journal of Accountancy (2001), available at http://www.journalofaccountancy.com/Issues/2001/Aug/AnExpertWitnessCanMakeOrBreakACase.htm?action=print.
4 M.T.Boccaccini, et al, “Effects of witness preparation on witness confidence and nervousness,” Journal of Forensic Psychology Practice, 3, 39-51 (2004).
5 Tess M.S. Neal, “Expert Witness Preparation: What does the Literature tell us?”, Vol. 21 The Jury Expert No. 2 (Mar. 2009), citing R. Aron., & J. L.Rosner, How to Prepare Witnesses for Trial (2nd Ed.). Danvers, MA West (1998); S.L. Brodsky, Principles and Practice of Trial Consultation, (NY: Guilford Press) (2009).
6 Neal, id.
7 Brodsky, Supra Note 5.
By: Kat Hatziavramidis, Attorney-at-Law