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A checklist to maximize results

Using an expert witness can be an effective way of making your client's case.  However, an expert in a field of knowledge is not necessarily an expert in communication.  Therefore you must take great care in selecting and preparing expert witnesses in order to get the maximum benefit from their testimony.

1. The initial interview.  The first contact with the expert is usually over the telephone.  You or your paralegal should at the outset establish the expert's familiarity with the general subject matter.   You should also ask about his or her experience with testifying in general, as well as testifying on the subject of the litigation at hand.  Finally, you should check for conflicts of interest.  Never review the facts of the case or postulate strategies and initial theories before you mention the names of the other parties and attorneys.  Since you may not be able to use the expert, you do not want to take the risk that the expert will call opposing counsel and reveal information learned from you.

2.  The personal meeting.  Most professional experts are willing to spend an hour meeting with an attorney before being hired so that the attorney can get a feel for their abilities and expertise.  They will bill for this time only if hired. Clients also should be encouraged to attend these meetings.

At this meeting you should question experts thoroughly regarding any history of complaints or claims filed against them.  Better to find out now than at deposition or trial.  You should listen carefully to determine if the expert speaks with spirit and conviction.  You should also discuss the expert's previous testimony on the subject matter of the current litigation.  Has the expert ever taken a position--either in writing or in speaking publicly--that could be viewed as inconsistent with the opinion you expect the expert to give on your client's behalf?

Since there is no way to anticipate all the questions on cross-examination, you will want an expert who can extemporize.  Some attorneys ask an unexpected question at the interview to test whether the expert can think quickly and give a persuasive, consistent answer.  Others pose a complicated hypothetical to see if the expert can follow the facts presented and respond in a meaningful manner.

You must also consider the future availability of the expert.  Ask about the expert's general health, plans to move from the area, or scheduling of extended vacations.

Other general considerations include selecting the right type of expert.  What kind of expert is most likely to persuade the trier of fact in your case?  A retired veteran with impressive credentials?  An academic whiz with teaching and publishing credits?  Or an active practitioner with field experience?  You will want to choose an expert old enough to have significant experience in his or her field but young enough to be receptive to and aware of current developments.  The parties' ages should also be considered.  For example, it may be more effective to use an expert who is a contemporary of an older defendant to testify as to the defendant's breach of a standard of care.

3.  Pleadings.  Make sure pleadings are consistent with the testimony you desire from your expert.  For example, the judge will not permit questions about standard of care if negligence has not been pleaded.

4.  Preparation. Always preview the questions to be asked on direct examination and establish with the expert whether you prefer a quick exchange of question and answer or narrative answers.  If you ask a question for which the expert has not been prepared, you run the risk of flustering your own expert and thus undermining his or her credibility.

5.  Deposition.  At a deposition, both sides can observe the expert's demeanor, ability to respond to new questions, and ability to think on his or her feet.  These observations will help determine whether a party will be amendable to settlement or will want to press forward to trial.  Thus, the expert's performance at a deposition is vital to the interests of your client.  Your expert should be instructed to dress as a professional, maintain eye contact with the examining attorney, speak firmly, and sit erectly.  If you find your expert is volunteering too much, is not being responsive to the questions, or is using body language or voice tone that reveal a lack of confidence, you should not hesitate to ask for a recess.

By:  Marvin Silverman, Esq.  E-mail:  marvs@redshift.com  

Marvin Silverman is an attorney who has been retained as an expert witness and consultant in more than 325 real estate lawsuits and has testified in more than 100 trials, depositions and arbitrations.