When your case demands an expert witness, your results will likely depend in large part on what your witness says and how your witness behaves during deposition and trial. Choosing the right expert is key, and so is preparing your expert witness to present his or her experience and opinions in the best professional light.
Here are some of the most common mistakes that occur in working with expert witnesses, and how to avoid them:
Mistake #1: Procrastinating in Choosing Your Expert Witness
Remedy: Schedule your expert witness selection at the earliest practicable stage in the case.
When you first agree to handle a case, you don’t always know that you need an expert. Once it becomes clear you will need one, however, it’s time to start looking.
The less time you provide for choosing an expert witness, the less likely you are to find the precise combination of knowledge, skill, and communication ability that you need. The expert you do find might be adequate – but “adequate” may not be good enough to carry the day for your client.
Choosing an expert witness early impacts the quality of your witness’s testimony, as well. An expert who is rushed through examining the case may produce an incomplete or inconsistent opinion, which may not only fail to help your case, but actually harm it.
Mistake #2: Rushing the Retention Process
Remedy: Plan ahead before you call.
This mistake often goes hand in hand with procrastination, but it can also exist separately. And while it’s more often made by attorneys who are new to retaining experts, it’s sometimes made even by seasoned litigators.
Your expert’s testimony will carry the most weight – and be the most difficult for opposing parties to redact or exclude – if the expert has sufficient time to review the case materials before producing an opinion and understands from the beginning what the opinion should contain. For instance, will you require a full report, or will an overview before deposition suffice?
The clearer the attorney is on what’s needed from the expert, the easier it is for the expert to produce the high-quality results needed to win the case.
Mistake #3: Flying by the Seat of Your Pants
Remedy: Brief your expert on courtroom procedure.
Lecturing during a deposition, hiding past professional problems, or contradicting their own prior testimony are mistakes any expert witness may make, no matter how much experience they have in the witness stand.
To avoid these issues, it’s best to prepare your expert witnesses by briefing them in courtroom etiquette. Always instruct expert witnesses to bring with them any learned treatises in their subject area, whether these support or contradict their position, and to be prepared to discuss them. Many a case has been lost when an expert was unprepared to deal with opposing counsel who had done their reading before they arrived.
Mistake #4: Choosing the Wrong Expert
Remedy: Work with a specialist who can help you know what you don’t know.
The wrong expert can be fatal to your case. Unfortunately, it’s all too easy for attorneys to pursue the wrong type of expertise, especially if you don’t have any experience with the subject matter or field for which you need an expert’s help. You may end up wasting considerable time seeking an expert in one field, only to discover that the witness you’ve expended so much effort to retain doesn’t have the expertise your case needs.
In this situation, a consultant who specializes in connecting law firms with expert witnesses can help. A specialist is more likely to spot which type of expertise you need and to know a highly qualified expert who meets the description.
Cultivating an awareness of the biggest pitfalls in working with an expert witness can help you avoid them – and prepare a better witness for a more successful case.
