Every lawyer who has hired an expert understands the importance of expert witness testimony at trial. Attorneys also know that in many cases, their selection of experts may win or lose the case. As such, lawyers look for experts who are able to communicate complicated issues in a manner lay people can understand. An excellent expert also knows how to teach rather than lecture and will appear professional and put-together when testifying.
But the right expert, used in the right manner, can actually help lawyers win their cases even before jury selection begins. Here, we’re discussing pre-trial strategies where experts can really boost your case.
1) A Good Expert Helps You Prepare
Is it “blood spatter” or “blood splatter”? “Spalling of concrete” or “Spaulding of concrete”? Is loci pronounced with a soft “c” or a hard “c”? Knowing the proper terminology and pronunciations don’t automatically equal rockstar status. However, failing to appreciate that saying “blood splatter” makes you look like an amateur is, well, amateurish. A good expert makes you a better lawyer by making sure you’re prepared for the subject matter.
Plus, experts can assist with more than just the jargon and pronunciation in their given field. An expert can explain to a lawyer how the science works and doesn’t work. They’re available for lawyers to workshop theories. An expert is an attorney’s built-in source of truth on what may or may not be feasible.
Experts are also critical in criminal cases. It’s incredibly valuable for a defense attorney to run through their client’s account of the events with an expert pre-trial. An expert is able to identify the areas the opposition may try to dispute or oppose. This allows both counsel and client to prepare most effectively for cross examination.
2) Experts Can Help Evaluate Offers
Consultation with an expert may, in fact, inform an attorney their theory doesn’t quite square with the science. But this is extremely valuable pre-trial information. An expert’s opinion cannot be bought. It may be an inconvenience to learn a case’s working theory isn’t scientifically sound or that your expert actually agrees with the opposition. But it’s far better to get this news before a trial has kicked off.
Having this expert knowledge in the pre-trial stages allows an attorney to pivot their approach. Understanding the weaknesses of your own case can provide guidance on whether or not to take an extended offer. For example, imagine a criminal case where your client has the option to plead to a lesser offense. It may still result in some prison time but could become the more attractive option following expert advice. If your retained expert informs you that the victim’s injury couldn’t have occurred how your client described, in the manner the defendant describes, you’re able to confidently urge your client to take the plea deal. Similarly, imagine a civil case where a defendant’s expert agrees that a product has cancer-causing properties. This could compel a defense team to extend an offer quickly, rather than risk publicity and a larger verdict at trial.
3) An Expert Can Find the Opposition’s Weaknesses
Your retained expert may inform you that they take no issue with the opposition’s conclusions. Though there are other areas where their consultation will be invaluable. For example, an expert may point out weaknesses in the opposing expert’s education, training, or experience. Alternatively, your expert may be able to identify shortcuts an opposing expert took in reaching their conclusion.
Most scientific fields have clearly defined best practices. If the other side’s expert failed to follow those best practices or failed to consider alternate theories, your expert will know. They can provide you with detail as to how and when these failures took place. This can give you a leg up when cross examining their expert during depositions. You may even lead the other side to consider extending an offer that is more favorable to your client.
4) An Expert Report Can Make the Opposition Reconsider
Consulting experts can help attorneys pick apart the opposition’s expert without ever having to disclose their agreement with the ultimate conclusions of the expert. However, should an attorney intend to call an expert a witness at trial, a report is required.
A well-written report is worth more than its weight in gold. An attorney can win before trial by providing the other side with an expert report that includes:
- A clearly understood opinion on the issue at hand
- The data relied upon to come to the conclusions drawn
- An explanation of the science that supports the conclusion
- Exhibits supporting the conclusions (including exhibits created by the expert based on the discovery provided, such as photos, medical reports, investigative reports, depositions from other witnesses, etc.)
- A discussion of why the other side’s expert is wrong (where the other side’s opinion has been disclosed)
- A detailed list of impeccable credentials
An expert opinion supporting your case is helpful. An expert opinion that clearly explains to the other side’s attorneys why their expert is wrong is nearly priceless. A well-written report should convey the competence of the expert and their ability to effectively address the issue. This should be in a manner easily understood by the laypeople of the jury. It should also raise serious doubt into the other side’s position.
No one expects the other side to simply throw up their hands and withdraw their suit, but an impactful expert report can open the door to more favorable settlement negotiations.
Even with the best experts, not all cases settle. In fact, in some cases, settlement may not be an option for a variety of reasons personal to the parties involved. However, in many cases, the usefulness of an expert extends well beyond testifying in the courtroom.
