When an attorney is working with an expert witness who has not testified before, either in a deposition or at trial, there are a few areas of consideration an attorney should be particularly mindful of. While some of the suggestions below may seem obvious, all of the situations discussed below have actually happened with attorneys and experts new to expert testimony.
When Travel is Involved
When an expert is traveling to testify, there are a few important considerations.
Minimize Connecting Flights
The cost of the flight doesn’t matter if the expert doesn’t arrive. While a flight with a connection may be cheaper, each leg of the journey has potential for cancellation, late departure, and missed connections. Get your expert to their destination as quickly and efficiently as possible.
Allow Extra Time for Inclement Weather and Other Unforeseen Circumstances
Booking travel for the day before testimony is well worth the extra fee for your expert’s time. In addition to random cancellations due to broken parts, overworked flight crews, and delayed connections, the weather can also result in cancellations. For example, if your expert is flying out of the Midwest between December and March, the possibility for a snow delay looms large. Bottom line: arrange to have your expert come in the day before they testify, preferably earlier in the day. This way, if a particular flight is canceled, there is a greater likelihood the flight may be rescheduled for later the same day.
Be Considerate of Your Expert’s Well Being
Do not ask your expert to take the red-eye or make other requests that will impact their ability to be fresh and professional while on the stand. Instead, ask your expert what flight works best for them. If they prefer one airline over another, honor that if possible. Make certain to discuss with the expert your expectations upon arrival. Should they take a cab to the hotel? Will you send a driver? Is mass transit the best option? Do not assume your expert knows what you want.
Plan and Review the Details of Your Meet-Up
In some cases, your expert will be arriving at the courthouse while you are handling another witness. Make certain they know whether or not they are allowed in the courtroom while others are testifying. Further, make certain they know whether or not they can speak with others outside the courtroom. The last thing you need is a mistrial, caused by the unintentional violation of a sequestration order. At a minimum, if you are able, have someone from your office meet and sit with the expert until it is their turn to testify.
Meet with Your Expert
It is a good idea to meet with the expert and discuss what you understand their report to mean. You can ask clarifying questions about their report and confirm you are correct in your conclusions about the significance of their report. Meeting with your expert and discussing their findings will lead you to better questioning. If you don’t understand something, ask the expert to repeat it using different words. A good expert is a good teacher.
Discuss Exhibits in Advance
Sometimes an expert will arrive for testimony with a PowerPoint or other exhibit in hand. Unfortunately, in most cases, these exhibits go to waste because they weren’t disclosed consistent with the discovery schedule the judge set in the case. If you think an expert’s testimony would benefit from a visual exhibit, discuss this with your expert well in advance. (Helpful practice tip: It almost always will!) Make certain they understand the deadlines for disclosure of exhibits as they relate to your case.
Provide Your Expert with the Lay of the Land
Different courts and different jurisdictions have very different approaches to the practice of law. Some places are more formal than others. While you know what is expected where you practice, your expert won’t have that same experience.
Let them know about local rules such as whether they can expect to be able to bring their cell phone into the courthouse, whether they can bring a beverage past security and other local rules that can impact their comfort level. If your courthouse bans open-toed shoes or bare shoulders—even if you think no self-respecting expert would wear such a thing—make certain you inform your expert about such rules. If security at your courthouse is particularly onerous, or if the delays are legendary, make sure to relay such information to your expert so they can plan ahead and budget their time accordingly.
Most people who have not testified as experts have also not been in a courtroom for any reason. Their knowledge of what goes on in a criminal or civil trial is likely based on what they have seen on television or war stories from colleagues. Neither of these is a good foundation for understanding how the court system works and what is expected of experts. Be kind to your expert. Take the time to think about what they may not know, and do your best to fill them in.