How to Prepare Your Expert Witness

Even if an individual labels himself or herself as an “expert witness,” it is still important that you properly prepare your expert for trial or for a deposition. An expert witness can help bolster your client’s case, but if not handled properly, he or she can actually cause damage to it. Here are a few tips to help prepare your witness.

Meet with the Expert

Well before the trial or deposition, you should meet with the expert. Get a good sense of his or her background and the industries in which he or she has worked. Be sure that you verify credentials and educational background. Provide the expert with the necessary information that he or she will need to assess in order to formulate a well-reasoned opinion on the subject matter. You may want to include at least meeting in which the expert and the client are together. Asking this question is a favorite tactic of the adversary’s attorney who will likely question the accuracy of an opinion based only on documents and not on an in-person meeting.

Review with the Expert

As the expert provides opinions that help shape your case, be sure that you review them with him or her. You should have a firm understanding of what the expert is saying so that you can relay this information in filings with the court and to the jury. Have the expert review his or her deposition testimony and to correct any inaccurate statements or insinuations.

Attack the Expert

Think like the other attorney would. Consider the potential weaknesses of the expert’s opinion and practice cross-examination in this manner. The expert should be able to clearly explain the basis for his or her opinion and the acceptability of it in the same professional field.

Selecting a Legal Expert Witness

Hiring a legal expert witness becomes necessary when you are retained for a case involving legal malpractice. The expertise of this witness is required to show where legal malpractice did or did not occur in your client’s case.

Selecting the proper legal expert witness for your client’s case can be quite the challenge. As all attorneys know, you must begin preparing your case with the end in mind. As you interview potential legal expert witnesses, consider how each one would testify in front of a judge and jury. Is the witness easy to understand? Is the witness engaging and interesting? Does the witness speak clearly, or does the witness have a distracting habit, such as foot tapping?

Additionally, ask each witness for the percentage of cases in which their testimony or expert reports were used to prevail. Many legal expert witnesses have testified in trial, but understanding how often the witness’ testimony has been persuasive to a judge and jury is more beneficial as you evaluate witnesses for your case.

Your legal expert witness should also be well versed in various aspects of legal malpractice cases. For example, say that your client’s case stems from a dispute over legal fees. If your expert only seems familiar with this aspect of legal malpractice cases, opposing counsel will use this fact to discredit your witness in court. A legal expert witness with experience in multiple types of malpractice cases will offer a wealth of knowledge to your case.

Finally, although it is tempting to select a witness who has primarily testified for the plaintiff or the defendant, do not dismiss legal expert witnesses who have testified for the “other side.” These witnesses will be able to offer you insight into opposing counsel’s position, which will significantly strengthen your case and your arguments.

Which Cases Require Expert Witnesses?

In some cases, such as medical malpractice cases, an expert witness’ testimony or report is required before a lawsuit may even be filed with the courts. In other cases, however, it is not clear when hiring an expert witness would be advantageous for your client’s case. Without an expert witness, a jury may not fully grasp the facts of the case. With too many expert witnesses, you risk the jury perceiving your case as one that is too weak to stand on its own. As an attorney, how do you balance these factors?

When the issues in your client’s case are especially complex, expert witness testimony will become essential. For example, in construction law cases that involve complicated theories of physics and engineering, an expert witness will be able to break these concepts down for the jury—and the judge. For simpler cases, for example, those involving a “fender bender,” expert witness testimony is likely not necessary.

If your client’s case involves a significant amount of damages, you will need to hire an expert witness. Expert witnesses are especially beneficial when the jury must decide an amount of damages that should be awarded to the plaintiff, should the plaintiff prevail. In cases involving future damages, or pain and suffering, in which there are no concrete numbers to draw an award from, an expert witness will assist the jury with deciding how to calculate such a number.

Essentially, if the success of your client’s case depends on theories or principles that would not be automatically assumed by a judge or jury, hiring an expert to explain these important concepts in the courtroom will be necessary. Your client may not be happy with the expenses an expert necessitates, but you must explain the value of the expert’s testimony for your client’s case.

How Legal Expert Witnesses Can Save Your Practice

From the first day of law school, attorneys are warned about the devastating impacts of malpractice lawsuits and client complaints to the state bar association. Unfortunately, at some point during your practice, you may be facing such a suit or complaint.

Although it is tempting to hide and hope that the entire ordeal just disappears, this will only damage your firm and your reputation as an attorney. Once you have notice of a complaint or malpractice filing, you must act as quickly as possible. One move that is essential to presenting your case is hiring a legal expert witness.

Legal expert witnesses are hired to demonstrate the reasonableness of attorneys’ fees and other decisions that attorneys have made during their representation of their clients. Hiring a legal expert witness will allow you to show the court or your state bar association that your fees were merited and/or that the decisions you made in your client’s case were reasonable decisions at the time.

When a complaint has been filed against you, you will of course be very stressed and emotional. A legal expert witness will look at the case objectively and will work with you to gather the necessary evidence to support your position. If you attempt to defend yourself alone, you may become panicked and risk damaging your professional reputation.

Additionally, a legal expert witness will allow you to remain focused on your practice. Although you will participate in your representation, your attorney and your expert witness will collaborate to present your case—which will allow you to continue your daily business operations.

Legal expert witnesses may also help you avoid litigation altogether. In many cases, when the opposing party hears the expert’s position, the opposing party settles upon realizing that the case is not as strong as originally thought.

How Expert Witnesses Can Help You Settle a Case

In many cases, your client is emotional and angry, which can hinder reaching a reasonable settlement. Many clients feel that if they settle, they are going to be perceived as weak by the opposing side. However, there are steps you can take to show your clients that settling is an excellent option.

Even though attorneys take the time to explain the details of a case and its possible outcomes to their clients, sometimes clients have a difficult time understanding that they may not prevail during a trial. This is especially the case during emotional disputes. In these instances, settling may provide a client with a conclusion that a judge would never award after a trial.

Hiring an expert witness to evaluate the lawsuit in an objective manner may help your client understand the legal aspects of the case. For example, in personal injury cases, an expert witness may be able to explain the science and physics behind a motor vehicle accident, and how a judge and jury may have a difficult time understanding how the client’s injury resulted from the accident. Once your client has heard an objective opinion from an individual skilled in these areas, it may be the push your client needs to understand that going to trial may do him or her more harm than good.

Legal expert witnesses may also assist you and your client with determining what is a reasonable settlement to offer to or accept from opposing counsel. Many attorneys have their expert witnesses attend mediation at least by telephone to assist with these discussions. Expert witnesses may also help your clients understand the opposing side’s arguments, as well as their weaknesses. Offering your clients the “big picture” of how the laws apply to the facts of the case is truly an eye opening experience.

Preparing a Legal Expert Witness For Trial: A Few Basics

The importance of expert witness testimony at a trial cannot be overstated, but the cost of retaining such an expert also highlights the importance of properly preparing the witness for trial. In order to get the most out of an expert witness, your attorney should be careful in preparing this individual for trial.

Your legal expert witness should be well versed in the legal elements within the case, any exhibits or other testimony that is going to be presented, and also with the kinds of questions that your attorney will be asking. Preparing for the questioning from your own attorney is just as important as preparing for the possible line of questioning from the other attorney.

The expert witness must be familiar with the legal elements of your case in order to make the connection between the groundwork laid by your attorney and what statements, if any, can be used to support your side of the case.

A good deal of the testimony portion in court will be devoted to establishing the expert’s credentials. This is essential for establishing the individual’s competency to speak in the case and it can also be very helpful for building credibility with a jury.

Make sure that you select someone who is both experienced, competent, and of the same opinions as you and your attorney. Putting together witness testimony is a vital part of presenting your case, so approach it thoughtfully.

Handling the “Yes or No” Question: How An Experienced Expert Witness Can Combat Challenges

One of the most challenging parts of working with a highly qualified expert witness in the legal field is that the other side is likely to try to “trap” him or her using the famous “yes or no” questions. On cross examination or a deposition, an expert witness is likely to be asked these types of questions because the other side believes that such a short answer either supports their case or undermines yours.

There are many ways to avoid such a predicament, so long as your legal expert witness is familiar with the options. An individual with experience can likely identify such an experience and respond in a way that addresses the question but also the ambiguity of the situation. One such example might be a response stating “I understand that this is a yes or no question, but answering it could be misleading to the court as it’s an incomplete answer.” Another option would be for the expert witness to answer truthfully with a “yes” or “no” followed by “under specific conditions”.

The bottom line is that it is important to work with a legal expert witness who will not be thrown off by the tactics used by the other side. Instead, a true professional will remain calm and present his or her points clearly, leading to the support of your case. Expert witness selection is a vital stage of your case and one that should be approached with caution.

Does My Case Indicate a Need for Expert Witness Testimony?

When preparing for trial, you will have to decide whether an expert witness will increase the odds of prevailing. In some cases, expert witnesses provide clarity on complex issues to a jury. In others, their testimony is unnecessary, as the facts may be able to speak for themselves.

The primary purpose of hiring a legal expert witness is to simplify confusing facts or strengthen inferences. In complicated cases involving legal disputes over reasonableness of legal fees and similar concerns, it can be quite advantageous for you to obtain a legal expert witness. An objective opinion, supported by industry norms and other evidence, may be just what is needed to have a judge or jury decide in your favor.

Test the theory of your case on other attorneys, as well as friends and family (without breaking any privileges, of course). By doing so, you can gauge their reactions to see how well they understand the facts of the case. If they appear confused and ask for a good bit of additional information, it may be a sign that an expert in the field is necessary to help a judge or jury draw conclusions.

A legal expert witness might also be used to rebut testimony from the opposing side’s legal expert witness. Your expert witness can be crucial for showing weaknesses in the opposing party’s case, which will cast doubt on their legal theories and arguments while boosting your client’s position. In addition, such knowledge will help you prepare well for trial.

What Are the Two Most Important Things to Know When Selecting an Expert Witness?

If you believe that your legal expert witness will be called at trial, you need to spend some time selecting the right individual. There are two critical aspects to selecting the right witness for your case: finding someone who is qualified but also an individual with expertise that mirrors the issues involved in your case. This is because these qualifications allow such an individual to provide accurate and informed testimony, but also because he or she should be someone with which the jury can identify.

This aspect of demeanor is why you or your attorney should meet with the expert witness in person before agreeing to work together. You need to be looking for someone who has a pleasant and authoritative overall demeanor with no irritating habits that could be distracting to a judge or jury. You also should look for someone with solid communication skills who can relay complex ideas to a lay audience. All of these factors are important in your selection of an expert witness.

If your legal expert witness is not expected to actually testify in trial, there are other considerations you may look at instead. In a consulting role helping counsel in the pre-trial stages, for example, a legal expert witness would not need to be as qualified in terms of explaining complex ideas to a general audience.

Bear in mind that different expert witnesses may arrive at different conclusions in your case, so it is important to identify someone who supports theories and opinions in line with your own.

Meeting with Expert Witnesses in Advance of Trial

When you hire a legal expert witness to provide testimony in a legal dispute over legal fees or firm retention and selection processes, preparing your expert is just as significant as the expert’s background and experience.

Experienced expert witnesses will typically have a grasp on courtroom procedures and what to expect. However, it is your responsibility to inform the expert of specific court rules in your jurisdiction. Additionally, if you are familiar with the judge presiding over your hearing, you can tell your expert what the judge is like so that the expert may prepare accordingly. Such preparation can help answer any of your expert’s questions and allow the focus to remain on the issues in the case.

Although there are commonalities in most court cases, specific court rules and procedures should be discussed in advance during a pre-testimony meeting. You should also take this time to discuss any recent developments in the law that may impact your case. Take the time to discuss direct examination, cross-examination, exhibits, and other issues so that your entire time is prepared for court.

A good attorney should always make the effort to walk through the court process with expert witnesses. The expert witness will be most prepared for his or her testimony when an advanced meeting is planned. This also contributes to the witness’ confidence in the courtroom, which will only help your case.

Identifying an appropriate expert witness is critical for your case. When you find a person with a background in providing insight on common disputes such as legal fees, vet him or her before hiring to determine whether the expert will be a good fit for your case. After careful preparation, you will be ready to proceed in front of the judge.

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