10 Ways to Get the Most Out of Your Expert Witness
By James J. Mangraviti, Jr., Esq.
Experts can be a critically important part of any litigation. Here are ten ways to get the most out of your expert.
1. Choose the Right Expert Witness. Attorneys are often disappointed in the performance of their expert witness. A great way to avoid being let down is to do one’s homework and make sure you are getting an expert witness who is knowledgeable in the areas at hand, responsive, available, and who had demonstrated expert witness skills. Don’t take the quick and easy way out. Choose the best expert, not the first one you come across. Don’t hesitate to ask the expert for references.
2. Spell Out The Assignment. Experts and lawyers often cause trouble when the assignment of the expert is not specifically spelled out. This could include experts getting into areas where they are not qualified or areas where they are qualified but where you don’t want the expert to go. To avoid these difficulties, let the expert know up front exactly what the assignment is and what the assignment is not.
3. Don’t Hold Back Information. One of the easiest ways to torpedo your expert witness and your client’s case is to fail to provide your expert with arguably relevant evidence. Make sure your expert gets what he needs and make sure that he gets it in a timely basis. Don’t hold back on information to keep the expert’s bill down or to try to improperly influence your expert’s opinion.
4. If Needed, Hire More Than One Expert. Don’t expect one expert to be able to competently cover every issue in the case. Hire additional experts as needed so that you have well qualified experts on each issue at stake.
5. Properly Prepare Your Expert For Deposition and Trial. A large percentage of trial lawyers either spend no time, or a grossly inadequate amount of time preparing their expert witnesses for testimony. They are then shocked when the deposition doesn’t go as well as they had hoped. A few hours spent in preparation can make all the difference in terms of how your expert performs at deposition and can be a very shrewd investment of your client’s money.
6. Keep Your Expert Witness in the Loop. Expert witnesses are highly compensated and can and should be prepared to work on short deadlines. That said, it is in everybody’s best interests to keep your experts apprised of upcoming deadlines, depositions and trial dates. You don’t want your expert to be avoidably burning the candle at both ends. Give your expert a frequent heads ups so they can work their schedule accordingly.
7. Communicate Orally With Your Expert. Where discoverable, a paper trail between retaining counsel and his expert witnesses can provide needless fodder to opposing counsel. Get in the habit of picking up the phone to contact your experts. Likewise, make clear to your expert witnesses that when they want to talk to you they should pick up the phone and call. Out your expert at ease and never give the impression that a phone call is unwelcomed.
8. Don’t Put Words in Your Expert Witness’s Mouth. There can be a tremendous temptation to improperly influence your expert’s opinion and push that expert in a favorable direction. Resist the temptation. Keep in mind that your expert witness will need to defend each and every opinion he forms in the case. Experts often implode when trying to defend positions they were pushed into.
9. Send Records/Documents To Your Expert in an Organized Fashion. One of the number one complaints of expert witnesses is that files and materials received from counsel are disorganized. Take the time to have the records you send out organized before you send them out. This will make your job easier as you work up the case, will make it easier on your expert, and will avoid having your client pay to have the expert reorganize the records.
10. Pay Your Bills. Pay your experts on time. Don’t quibble unjustifiably on fees. Experts are understandably not happy when their bills are not paid. You want your expert concentrating on your case as opposed to worrying about if and when you are going to pay them.
About the Author.
James J. Mangraviti, Jr., Esq,. is a Principal of SEAK, Inc., The Expert Witness Training Company ( www.testifyingtraining.com ). He has lectured and written extensively on expert witness issues. Mr. Mangraviti is the co-founder of SEAK’s National Directory of Expert Witnesses ( www.seakexperts.com ).