Many attorneys seek expert witnesses who have litigation experience in addition to their technical or scientific knowledge. In some cases, however, the most knowledgeable expert may be one who has never served as an expert witness before.
A first-time expert witness can still prove invaluable to your case, providing the expert is properly prepared for their role. To work effectively with an expert who is new to litigation, it’s beneficial to prepare and educate the witness throughout the process.
Begin a relationship with a first-time expert witness by discussing your expectations for their participation in the case. For example, explain which tasks require their expertise. Do you need the witness to perform certain tests or analyze the findings of an opposing expert? Will they need to testify at trial, or perhaps, all of the above?
During this process, take time to listen to the expert’s expectations for the relationship as well. Educate the expert, when necessary, on discovery rules or courtroom proceedings. This will aid the expert in forming clear expectations that align with yours.
When working with a first-time expert, attorneys will need to view the relationship from a new perspective. Unlike an established expert, a first-time expert does not know which questions to ask or what to expect. An attorney who can anticipate and answer these questions enables the expert to move forward with confidence.
Review Your Expert’s Background
Although the first-time expert witness will not have participated in any prior legal matters, the expert may still have ties to another party in the case, such as through former employment. Don’t skimp on conflict of interest checks. Have an open discussion with your expert about their current and prior professional affiliations to make sure they are fit for the case.
Create a Retainer Agreement
Creating a retainer agreement early in the process can help clarify expectations for both parties. The retainer agreement also gives the first-time expert witness a valuable reference to check when certain questions arise.
As with any retainer agreement, ensure the first-time expert’s retainer describes the scope of services to be performed in detail. Include a summary of the expert’s general preparation tasks, the work they will complete, and specific mentions of any deadlines.
Also in the retainer, it’s critical to include information on how the expert witness will be compensated. A first-time expert witness may not be familiar with the difference between fees and expenses, for instance. They may also not be familiar with the process of providing periodic billing statements to the attorney. Walk your expert through these processes and commit them to writing in language the expert can review easily.
Explain the Litigation Process
The courtroom atmosphere is full of unfamiliarity for a first-time expert witness. Help build the expert’s confidence by walking them through the various phases of trial. This includes a primer on jury selection, opening statements, and undergoing voir dire. Experts will also need guidance on the educational aspects of their testimony for the jury and what to expect during cross examination.
Prepare Them For Cross Examination
Prepare to spend significant time focusing on cross-examination as well. An unprepared first-time expert witness is likely to experience cross-examination as an attack. It’s likely the opposing counsel will question their reasoning, their credentials, and even their worth as a professional. Begin by demystifying cross-examination itself by explaining its purpose and function within trial proceedings.
Then, encourage the expert to think carefully about their responses to each cross-examination question. For instance, an inexperienced witness is more likely to get stuck on autopilot if the answer to a long list of questions is “yes”, only to be thrown off when the last answer is “no.” Encourage your expert to stay alert for such tactics.
Collaborate on Exhibits and Visual Aids
Both expert confidence and jury education can benefit from a thorough discussion of exhibits well in advance. Talk to your expert about whether a visual aid would help make their testimony more relatable for the jury. Perhaps your expert is comfortable using PowerPoint, presenting a model, or a set of images in court. Work with the expert to create these exhibits within disclosure deadlines.
Discuss Logistics in Advance
When preparing an expert witness for court, it’s important to ensure their overall well-being leading up to the trial. Plan for any anticipated delays in travel, and that your expert can acquire adequate food and rest. Making these plans well in advance will allow your expert witness to feel more comfortable and confident when actually in court.
Orient your expert to logistical details familiar to attorneys but typically unknown to a first-time expert witness. This can include: Where should you park at the courthouse? Are phones or coffee allowed through security? Are certain sartorial choices ill-advised, such as open-toed shoes, for the courtroom? Help your expert plan ahead for the day itself, so that they can focus on their main task. Their only concern on that day should be to help the jury to understand key aspects of your case.
A Green Expert May be the Way to Go
Expert witnesses with litigation experience are often an attorney’s first choice to retain. But an expert new to the expert witness arena shouldn’t be passed over if their credentials are the best fit. With some standard preparation areas, any professional can learn the legal ropes and be ready to contribute effective testimony.