Whether a seasoned or new expert, stakes are high when testifying and no one is perfect. It’s the role of the litigator to make sure the witness, expert or not, is ready. When preparing an expert witness, it is especially important for them to understand the case so they can field questions including those from opposing counsel.
Vetting the Expert
If you’re calling in an expert, there’s a reason. Whether it is to debunk the opposition’s argument, explain a complex topic, or present unbiased evidence, you’ve got to be sure the right person is sitting in the witness stand. Just as employees are interviewed, it’s important to vet the expert by asking questions like:
- What are your qualifications as an expert?
- Have you ever been disqualified as a witness?
- Have you ever been professionally disciplined?
- How many times have you been an expert witness?
Of course, you have to do your own research on them as well; the internet makes it fairly easy.
The last thing you want is for opposing counsel to discredit the expert so you’ve got to do your due diligence ahead of time.
Adapting to the level of experience when preparing an expert witness
Once you’ve vetted the expert, mentor them in a meaningful way. What I mean is that if they have a lot of experience being deposed, you may need to only provide an overview of the process. For others, you will need to remind them these:
- Listen to the complete question before answering.
- Request the question be repeated if you’re not sure what they’re asking.
- Answer only what is asked.
- Take breaks as needed.
Litigators tell us that the best experts are often the ones who are experts in their field but who have not done too much work as a witness.
Asking the right questions, even if they’re the tough ones.
Not only is it important to vet the witness, they also need to review expert reports, prior testimony (if applicable), and the case summary, and as the litigator, you must ask the right questions, even if they’re the tough ones. They must be familiar with not only your strategy and theory of the case, they must understand the other party’s theory. Otherwise, they may be caught up in an unintended argument that may only be settled by the judge or jury. In other words, an unprepared expert witness can hurt your client’s case.
If you’ve got a new(er) expert witness, consider a mock deposition with your legal team to be sure they’re able to answer even the toughest of questions. And if you’ve got questions or need a court reporter for your next deposition, give us a call!