Once you know that your case will require an expert witness, you've carefully researched possible experts, and you've retained your expert, how can you use your expert to the greatest effect as your case moves toward trial?
Although these suggestions may seem like common sense, they reflect areas in which lawyers often forget how to best use an expert witness.
Yes, you were very careful in selecting your expert, reviewing the expert's qualifications and credentials, interviewing the expert, talking to other lawyers who have used the expert.... But as your case moves forward, you should nonetheless ask yourself whether you made the correct choice? Often the answer will be "yes", but sometimes you will realize that it is necessary to bring in a second expert either to replace your original choice or to supplement his expertise.
You will benefit from hiring your expert as early in the case as possible, so that you can develop your case and legal theories in light of his expertise.
- Your expert can help you identify the best legal theories, avoid wasting time on issues and theories that are not viable, and in identifying important evidence.
- Your expert can help you develop critical aspects of your case, including identifying standards and practices within an industry or profession, as well as when and why deviations from the governing standards are relevant to your case
- An expert witness can help you with discovery.
- Your expert may have a sense of where key documents or other evidence may be found, which may not otherwise occur to you.
- Your expert can suggest lines of inquiry for interrogatories and depositions.
The longer you wait to hire and utilize your expert, the less likely it is that you will be able to take full advantage of your expert's assistance.
You need to maintain an open channel of communication with your expert, and to keep your expert appraised of significant developments in the case, as well as providing access to evidence that you acquire over the course of discovery. If you are working with a good expert, your expert is not going to waste time reviewing irrelevant documents and evidence.
You need to trust your expert to sort through the evidence. If you do not, you may deprive your expert of key evidence, undermining his theory or causing him to be embarrassed when he testifies.
Remember that your case will often rise and fall on the credibility of your expert. You should not assume that you are as skilled as your expert, either in figuring out what evidence is relevant or irrelevant to his work.
Sometimes it is sufficient to have your expert help you prepare for a deposition or to review deposition transcripts, but it will often make sense to have your expert accompany you to the depositions of other experts and key witnesses.
If the litigation involves technical issues and jargon, your expert can help you understand complex testimony and its significance to your case. Your expert may recognize that a witness's response is more evasive than it appears, and may help you determine when a witness's answer is incomplete or when its artful phrasing suggests that the witness is holding back key information.
Recall that your expert has other obligations.
- Make sure your expert is aware of discovery deadlines, deposition dates and trial dates well in advance.
- Give your expert time to research and prepare.
- Don't expert your expert to be able to review mountains of evidence over a very short period of time before a deadline, but instead make sure that your expert has that evidence well in advance.
- If your expert is going to prepare a report for your case, make sure that early versions are clearly identified as drafts.
Give your expert plenty of time to prepare the report, and give yourself the opportunity to review drafts and to make suggestions in the interest of clarity and completeness. A high quality report can help you reach a favorable settlement. Even when coming from a highly qualified expert, a rushed report is not likely to be anywhere near as compelling.