Expert witness testimony can make or break a case. Done right, the opinion of a recognized and credentialed expert in the field as to the legal question at issue can sway even the toughest judge or jury. However, in many cases, important parts of the expert’s testimony are excluded, the fact-finder does not view the expert as credible, or the expert is simply beaten up on cross-examination.
Attorneys can reduce these issues by avoiding a few common mistakes. Although these principals are pretty in keeping with general litigation principles, lawyers tend to forget them when dealing with experienced witnesses with special credentials whom the lawyer is paying to testify. It really comes down to being prepared, and remembering ethics:
1. Full disclosure is the best option
Don’t you hate it when a client doesn’t tell the whole truth? Then it all comes out at trial, and the only option left is to run sprinting to the other side and pray they take a much worse bargain than what they originally offered? The same principle applies when an attorney preps his or her expert. Give the expert all the examinations, documentation, depositions even if it harms the case. There might be ways to soften the blow with time to prepare, something the expert won’t have if he or she is ambushed on the stand.
2. Be mindful of professional witesses’ limitations and obligations
Many experts, particularly those in medical fields, have serious ethical considerations that may limit the type of testimony they can give. For example, treating physicians can only offer an opinion to the extent that it was integral to treatment. To offer opinion testimony beyond this, the physician must submit to all the requirements for giving expert testimony. That means a Daubert review to determine whether physician’s testimony is reliable and probative. It also means the physician must conduct a comprehensive review of the case and submit an expert report complying with court rules. An attorney hoping to get expert-level opinion testimony without paying for a review and report, or paying expert witness rates can find himself in big trouble after the judge excludes that testimony under Daubert.
Experts also have an obligation to the court and to their own professional integrity to give an objective opinion on the case. Judges are already plenty concerned that experts simply give the opinion they are paid to give. (PDF) Don’t think of your expert as a participant in gladiatorial combat with your opponent’s expert. Fighting is for the lawyers. Trying to push for a stronger opinion than is warranted by the facts can only harm your expert’s credibility and the strength of the case.
3. Get an expert with specific credentials and continuing practical experience
The greatest concern for judges regarding expert witnesses is they slip too far into advocacy for the side that paid them (the greatest for attorneys is that they are too expensive). Two fairly easy precautions in the expert witness selection process can limit these concerns. Make sure your expert has experience that is as specifically related to the question at issue as possible. Certifications, professional group memberships, and papers published can all go a long way toward demonstrating to the judge and jury that the testimony is not only relevant, but also that the opinion should carry significant weight. A continuing practical career in the field serves as additional evidence that the expert is not merely a hired gun.
4. Prepare yourself, and your expert
Many lawyers think just because an expert has done dozens or hundreds of trials before, they should know exactly how to handle it when put on the spot. Not so! Even the most experienced trial attorney runs through his or her closing a few times before hand. An expert should be similarly prepared for the course of examination. A brief run through of the examination questions can go a long way toward organizing the expert’s thoughts and files, making the testimony smoother and more coherent. An ounce of prevention, as the cliche goes.
Getting high-quality testimony from an expert witness does not have to be hard. All it requires is some care in the expert selection process, a little preparation, and remembering some relatively basic litigation principles.
Chris Mommsen is a Colorado criminal defense attorney; Jane McNaught is a national forensic psychological expert witness based in Minnesota.