Professionals in a number of fields may find themselves asked to serve as an expert witness in a civil or criminal trial. Some professionals even build their expert witness services into their careers, finding that they enjoy providing the benefit of their expertise in the interest of helping litigants to clarify technical facts that arise in their cases.
If you’ve never served as an expert witness before, fear not. Preparing to testify in deposition or trial can help you proceed more confidently. While the attorneys with whom you work will offer particular advice and guidance, here are some general tips that can help you understand what to expect.
Not every person involved in a lawsuit is a party to the lawsuit. Attorneys are nearly always involved in lawsuits, as are one or more witnesses. Some witnesses are called to testify about the facts of the particular case; others are asked to testify voluntarily to provide information that is relevant to the issues in the case and helpful to the judge or jury tasked with resolving the facts. These witnesses are known as “expert witnesses.”
Expert witnesses play an essential role in today’s civil lawsuits—and, increasingly, in criminal trials as well. As scientific and technological advancement continues to reshape our world, the assistance of an expert with knowledge, skill, experience, training, or education relevant to topics involved in the case becomes ever more essential in helping judges and juries understand the importance of certain facts, processes, results, or events.
Today, experts may be called to testify from nearly any professional or academic field, depending on the facts of the case and the specific information that needs clarification.
Pre-Testimony: Your Credentials and Qualifications
Before you testify in a deposition or trial, the party wishing to use your testimony must establish your credentials or qualifications to the court. Consequently, many prospective expert witnesses find themselves answering detailed questions about their CVs, research, publications, awards, or work.
While these questions can feel critical, they are not typically intended to dismiss or denigrate your expertise. On the contrary: the attorney who requested your assistance is ensuring that the opposing party can’t make a case for dismissing you and your testimony by testing those boundaries before submitting your name to the court.
In addition to examining your credentials, the attorney will likely also evaluate your skill as a witness. Not only do lawyers want to see that you can use good professional judgement in analyzing facts, but they also look for witnesses who can translate that analysis into clear, simple language for a lay audience. The ability to handle intense or even harsh cross-examination by opposing counsel is essential as well.
Reports, Depositions, and Discovery
Once the court agrees that you’re qualified to serve as an expert witness in the case at hand, you may be asked to prepare a report. The report should outline the areas of expert testimony you plan to provide at trial. The attorney you work with can provide more information on specifics to include in a report.
Every civil and criminal trial is preceded by a period called “discovery,” in which the two sides trade information and work to determine which facts are in contention and which are agreed upon. During discovery, you will likely be asked to give a deposition, in which you’ll be asked questions by the attorneys for both parties. Your testimony in the deposition is given under oath and is recorded for future use. You may request to review the transcript of your testimony once it is complete.
Despite popular conceptions of lawsuits and criminal trials, the vast majority of civil and criminal cases never reach the trial stage: a settlement or bargain is made before that point. Consequently, you may serve as an expert witness several times before you participate in a case that reaches trial.
When you take the stand at trial, you’ll be sworn in and your testimony will be given under oath, as it is for any witness. Then, you’ll likely be asked to list your various qualifications as an expert. Preparing and practicing a summary of these qualifications before trial can help you retain your confidence and calm on the stand.
Then, you’ll be asked to give testimony. Unlike witnesses who are called to establish facts, expert witnesses may give responses consisting of facts, opinions, or both. For instance, you may be asked to give facts like the definition of certain technical terms, or you may be asked if, in your professional opinion, a certain event led to a certain result.
You may also be asked to observe the rest of the trial. During this time, the attorney may ask for your ongoing assistance or advice.
Attorneys who engage the help of an expert witness typically spend time preparing the witness carefully for deposition and trial. When in doubt, ask the attorney any specific questions you have and follow his or her instructions.