Once in a while, I come across a report of a case from which I am reminded of the simple things that should be done in every case.  Recently, I read about a case in which the court-appointed expert witness cited references of studies commissioned by one of the parties to the case.  A motion to have the expert removed was filed.

Let’s use this blog to create a checklist on expert witness resources and how to both vet and challenge them.  When there is much going on in a litigated case, it is natural to want to delegate.  Once an expert witness is in place, premature relief can set in that a portion of a case is covered, when, in reality, the lawyer remains as responsible as ever for even the expert witness.

First, when it’s your own expert witness you have no excuse to spare you from doing your homework.  Run down each reference on the resume.  Pull every article and study co-authored and then check the co-authors.  Run searches for anything else written by or about the expert witness, particularly materials available in the public domain.

Then, cross-examine your own expert witness.  Ask the questions about resources consulted, even if not cited.  Question what research is seminal in the field.  Challenge using prior publications that may appear inconsistent or even contradictory.

Second, adopt the same rigorous approach to the opposing expert witnesses, only this time with the aid of your expert witness.  By taking your own expert through the gauntlet, you show him your abilities to challenge his opponent and also how he can help you make that possible.

Where it gets tough is the third step and that is how to handle citations that pop up during trial.  It’s one thing when something emerges at a deposition, after which there is still time to learn and investigate.  But you need a strategy for how to handle such moments in the course of testimony.  Among the options may be:

  • request a recess to obtain and properly review the materials, as well as consult with your expert;
  • motion to prevent use of the materials;
  • have a researcher and/or your expert witness on call during anticipated hours of opposing expert testimony;
  • hope that the clock works in your favor and then pull an all-nighter.

The moral of this could perhaps be said: don’t accept an expert witness at first cite.

By: Paloma A. Capanna, Attorney