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Experts are a tool to help you win your client’s case and maximize damages. Period. You should use only the experts who will help you achieve these goals and only to the extent necessary to achieve the goals.
Simply hiring and paying an expert, sending the expert some documents to review and then turning that expert loose in deposition or trial is not the most effective way to prepare your case. It can, in fact, be counter-productive. While expert testimony is an essential element of proving many cases, always remember that the trial lawyer (not the expert) is the captain of the ship and must be setting the overall strategy for the case.
To help your experts protect their opinions during deposition and trial, prepare them properly by reviewing with them the following points.
1. The Expert’s Role as an Advocate for His Opinions
It is critical that you explain to experts, particularly those who have little or no testifying experience, that giving testimony at a deposition or trial is not remotely the same as a discussion among colleagues. It is not a professional debate. The defense lawyer is not really interested in the substance of what the expert is saying and is not amenable to being convinced of the essential truth of the expert’s testimony. The defense lawyer is looking for ways to discredit the expert’s testimony and, if possible, make him look unqualified, unprepared, dishonest, or all of the above.
In deposition and at trial, subtleties that might mean a great deal to experts in a particular field get lost. The other lawyer will have no compunction about mischaracterizing what the expert is saying or creating an impression in the jurors’ minds about what the expert is saying that is completely false.
Therefore, your experts must understand that they have to become advocates. Not advocates for the plaintiff or for you, but rather advocates for their opinions. It’s all well and good during the preparation phase of the case for the expert to bounce around different ideas and theories. If the expert flat out disagrees with the position that you’re taking, he should say so, and you’ll know to look for another expert or drop the case. But once the expert has completed the preparation phase and reached certain opinions, and the trial lawyer makes the decision to present the expert and his opinions at trial, the expert must understand that he is now entering an entirely new and distinct phase of the case.
If the expert does not become an advocate for his opinions, if he walks into his deposition thinking that he simply has to state his opinions and answer a few clarifying questions, he will be eaten alive. Worse yet, if he walks into his deposition looking forward to an edifying discussion among professionals, he is in for a rude awakening.
2. The Scope of the Expert’s Testimony
Experts have a tendency to want to talk about every single thing that the defendant did wrong, regardless of how trivial the violation is or how little it had to do with the incident in question. Your job as the trial lawyer is to edit down the expert’s testimony to the issues that are truly critical to proving your case. If the expert’s attacks on the defendant are too wide-ranging, the strongest points will get lost in the shuffle and lose their effectiveness. In preparing your expert to testify, always strive for simplicity and clarity.
Experts often want to cover everything and try to prove your entire case. Particularly with an inexperienced expert, you need to explain that he or she has an important, but specific, role and that other experts (and lay witnesses) will cover other aspects of the case. It is a big mistake to allow your expert to go off into areas that are not within his or her area of expertise.
Usually, you do not want two of your experts to offer overlapping opinions because of the risk that they will conflict (or appear to conflict) with each other. There is nothing wrong with an expert testifying in deposition that he or she cannot answer a particular question because it is beyond the scope of what he or she has been asked to do. Before an expert goes into the deposition room, the expert needs a very clear idea of what areas he or she has been asked to address and what areas are being covered by others.
3. Which Points to Concede
There is nothing wrong with conceding some points made by the other side, but the decision about which points to concede should be made, if at all possible, ahead of time, as a result of a thorough discussion during the preparation phase. It is very dangerous for an expert, particularly an inexperienced one, to make concessions “on the fly.” What the expert may see as a small concession on a narrow point may appear to a lay person to be much more significant.
The expert should try to listen to every question “with the jury’s ear.” How is a jury going to interpret the question? Is the jury going to notice the subtleties that the expert has been trained to notice? But many experts, particularly technical people like engineers, will have a very difficult time doing this. They therefore need to be extremely careful not to concede anything without including some sort of caveat.
4. Using “Not Necessarily” and “It Doesn’t Matter”
The most common escape route for experts is to begin an answer with “not necessarily.” This is a convenient method of giving a responsive answer, but at the same time provides the expert with a leisurely and extended avenue to explain the exceptions to the rule. Sometimes the exceptions will emasculate the general rule.
A close cousin of “not necessarily” is “it doesn’t matter.” In other words, the defense lawyer may ask your expert to concede some factual issue that has nothing to do with the real issues in the case. Rather than simply conceding the point, and perhaps allowing the jury to believe that it is significant, the expert should point out that the particular fact does not change her opinions and does not really bear on the issue at hand. For example, the plaintiff may have violated an employer’s safety rule that played no role in causing the accident.
5. Dealing with Hypotheticals Containing Contrary Facts
Defense counsel can ask your expert to assume certain facts, but the expert should point out, before responding to the hypothetical, if the assumed facts are contrary to the actual evidence. Inexperienced experts will often simply launch into an answer and create the impression that they agree with the factual assumptions underlying the question.
6. Dealing with “Is it possible?” Questions
Experts must always keep in mind that the burden of proof for the plaintiff is typically the preponderance of the evidence. Experts are often not accustomed to thinking in terms of what is the most probable explanation for some occurrence. Scientists want to prove things to a certainty and may treat possible scenarios and probable scenarios exactly the same, when the fact is that, from a legal perspective, they are entirely different. When the defense lawyer asks your expert whether certain scenarios are “possible,” the expert should always begin any answer by pointing out that the standard is probability and that while the scenario described in the question may (or may not) be possible, it is not probable.
7. Keep Strongest Points and Supporting Facts in Mind
It is useful for an expert to keep in mind a small handful of facts that are the strongest support for the expert’s opinions. When the expert is thrown off guard by a particular question, the expert can always resort to beginning the answer with the strongest points, before attempting to answer defense counsel’s question more directly.
8. Opinions Based on Experience Are Legitimate
Experts should understand that their background and experience, by itself, is often a legitimate basis for an opinion. Academics and technical people are not trained to think this way. They are used to backing up every point with a footnote. However, it is often very effective for an expert to simply say, “I have worked in this field for decades and dealt with this sort of issue many times, and based on that, my opinion is . . . .” It is very difficult to cross-examine that sort of testimony, particularly if the expert has strong credentials and comes across well.
About the Authors
Larry Booth, a member of the Inner Circle of Advocates and founder of Booth & Koskoff, has written hundreds of articles in various legal publications providing attorneys with practical guidance on the secrets to success in the personal injury field.
Roger Booth, a California “Super Lawyer,” has handled more than 20 cases that have resulted in verdicts or settlement in excess of $1,000,000. He is a frequent writer and speaker on personal injury practice and trial tactics.
Personal Injury Handbook is loaded with practice aids and tips, 140 forms, and 60 checklists specific to 15 types of cases.