Expert Witness Preparation
Submitted January, 2002
It has been said that "...expert witness preparation is perhaps the most difficult skill in civil litigation. It is substantially more difficult for opposing trial counsel if you have not provided them with a road map of your questions during discovery."1 Having been on the expert side of such preparation on many occasions, I appreciate the difficulty.
In my experience, the time and effort that lawyers have devoted to preparation for my testimony at deposition or trial has varied from a short telephone call to an all-day, in-person session. Of course, the length of the preparation is related to the complexity of the case, the role of the expert, and the issues and money at stake.
What is almost always unknown to me is the style of the opposing attorney. Unfortunately, this is also often unknown to the lawyer for the side I'm supporting (or if known, not passed along to me). By "style," I mean: is the attorney polite, or arrogant and condescending? Pose questions crisply, or engage in long prefatory statements before getting to the actual question? Stray from case-related questions to the totally irrelevant? In a recent deposition, the examiner started with the basics of my name and address, which I provided. He then asked for my home telephone number, and I replied that it was unlisted. He had a document with my office address and telephone number, but he still asked, on the record, "Can we please have that number, sir?" I answered, "No." After an objection, he did not press the point. Yet I had set the tone with my refusal. Another attorney in a different case wanted to know the annual billings of my company, which I flatly refused to provide (and he didn't pursue it).
In a hearing before a special master, attorneys for the side I was supporting knew little about the master, a local lawyer. It became quickly apparent at the hearing that he would accept virtually any testimony, even if hearsay or if not responsive to the original question. During my cross-examination, I managed to get in several explanatory points to questions that might have been restricted to "yes" or "no" answers in another venue. The master told me during a break that he was getting an education on the industry in which the case was set.
According to another author, lawyers should prepare the expert in these areas: prior statements, opposing views, the opposing expert, and general credibility. Let me offer some commentary on each.
Some experts routinely destroy documents after a certain interval. I do not, because I know that copies of the documents may be in existence elsewhere - and I'd rather be able to review such documents readily, on my own terms, rather than retrieve them. My testimony is consistent from case to case on the same or similar issues, in part because of my files.
For instance, a recent case raised the issue of a dealer's annual parts turnover, which was below twice a year against a standard of four - indicating poor inventory management and/or inadequate sales. The opposing attorney hammered away at my standard of four, but I did not relent. After the hearing I checked my files and found this was a standard I had published in writing as early as 1980. No inconsistency here.
I always ask the lawyer for our side what, if anything, I should bring to a deposition, hearing, or trial. Usually it is best to bring little or nothing, but sometimes I will bring copies of documents already produced to the other side, such as an expert report. I may also bring documents that back up the report, or are cited in it. I may also bring documents not yet produced, but which we plan to produce in support of my opinions.
As for opposing views, there will always be someone, somewhere, who will disagree with my opinions. I think the key for an expert is to connect expert opinions with the case at hand—show the triers of the case why a particular expert opinion applies here. The opposing views may not be as relevant, may be expressed by experts with less industry experience, or may not even pertain to the industry involved.
The testimony and report (if any) of the opposing expert is - or should be - an important part of my work. Many attorneys ask me to prepare deposition and trial questions for the opposing expert; if not asked, I volunteer.
At my own deposition, if I have read the opposing expert's report or deposition, I will be asked about it, and need to be prepared with a critique. One examiner didn't like my use of the word "logic" when I opined that some of his expert's opinions lacked logic. He asked if I had a degree in logic, which I don't. He refused to accept the premise that the assertions of his expert just didn't make common sense to the average person. He went on for some time on the "logic" and "common sense" issues.
As to credibility, I am fortunate to have served a wide enough clientele that I cannot be labeled a "plaintiff's expert" or a "defendant's expert." I've also struck a balance between work for manufacturers and for dealers.
Copyright © 2002 Richard O. Neville.All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you believe you may lawfully use a quotation, excerpt or paraphrase of this article under the Fair Use exception to copyright law, except as otherwise authorized by the author of the article, you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.