Managing Expectations When
Preparing an Expert Witness
Chances are that any
horror story you’ve heard about a disappointing performance by an expert
witness centered around a failure to adequately prepare for their testimony
-- not a lack of technical or analytical acumen. An expert who doesn’t
connect well with the jury, delivers direct examination testimony that seems
scripted or contrived, or becomes flustered under cross-examination most
likely has not had adequate preparation.
Avoiding common pitfalls and implementing lessons learned from past
challenges are important for a litigator preparing for trial. Some basic
things to consider:
Develop and Maintain Open Communication
On an elementary level, getting off on the right foot is part of building a
proper foundation for your expert witness. Communicate clearly the planning,
scheduling and “big picture” issues of the engagement. This task should not
be delegated to a subordinate. Trial counsel is usually best served by
initiating and nurturing these dynamics from the outset.
Use Visual Aids
The development and presentation of graphs, charts and other visual tools
can be extremely helpful and can allow the expert witness to communicate his
or her opinions more effectively. These aids can minimize confusion,
maintain interest and provide a lasting impression in the minds of the
jury.
The litigator can bolster the effectiveness of visual aids by making sure
that they are presented on a “timely basis” in relation to the expert’s
testimony. Furthermore, and perhaps more importantly, the message conveyed
by such aids must accurately reflect the points that the litigator intends
to make.
Make a Practice Run
While it may be irrefutable that your expert is highly knowledgeable about
the subject matter at issue, misunderstandings between counsel and the
witness are still possible. Be sure that your witness appreciates the
gravity of the information to be elicited.
The importance of one or more practice sessions in this regard is twofold. A
dry run not only allows the expert and litigator to work out any kinks in
their game plan, but it is also an effective tool in preparing for the
inevitably tough cross-examination that your expert will have to endure.
Follow Up
It should be anticipated that several months may pass between the time of an
expert’s engagement and the ultimate presentation at trial. As the trial
date nears, it is important to get together with the expert witness to keep
each other abreast of all relevant developments. Depositions may have
occurred in the interim, and other developments may need to be reviewed.
Basic “housekeeping” issues should be solidified too, such as the
availability of your expert on the projected trial date.
Conclusion
The desirable attributes of an expert -- the ability to communicate well,
credibility, authoritativeness, accuracy, sincerity, an ability to connect
with the judge or jury and the fortitude to withstand attack on
cross-examination -- can all be developed or enhanced through appropriate
preparation during the pretrial process.
This newsletter is provided by
Somerset for our clients and other interested persons upon request.
Since technical information is presented in generalized fashion, no
final conclusion on these topics should be made without further review.
For additional information on the issues discussed, please contact
Steve Riddle,
Tom Thieme,
Rex Collins or
Doug Ayres
of our
Litigation & Valuation Team.
This document is not intended or written to be used, and cannot be used,
for the purpose of avoiding tax penalties that may be imposed on the
taxpayer.
Somerset CPAs,
P.C.
3925 River Crossing Parkway, Third Floor
Indianapolis, Indiana 46240
317.472.2200 • 800.469.7206 • FAX 317.208.1200
www.somersetcpas.com
