Making the most of expert witnesses

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By Richard Gabriel,
Dolan Media

Investing time upfront leads to better results at trial

At best, expert testimony can be the viewfinder that brings blurry evidence into focus for the jury. At worst, an expert can confuse, bore or even offend jurors.

Lawyers who spend the time to help focus the expert’s testimony will be better served in the long run, said Edward Schwartz, a trial consultant in Lexington, Mass., but many do not make the effort.

“Too many attorneys treat their expert testimony as just another thing on a list they need to tick off,” he said.

To make the most of expert witnesses, attorneys and consultants across the country recommend the following guidelines.

• Don’t overdelegate One mistake lawyers make is leaving an expert to his or her own devices, said Jeannine Lee, a product liability attorney and shareholder at Leonard Street & Deinard in Minneapolis.“There’s a tendency to assume experts have examined all the facts,” she said, “when it turns out there’s something very fundamental they haven’t looked at.”To illustrate the need to monitor an expert’s preparation, Lee recalled a case in which she defended the maker of a gas valve. While cross-examining the plaintiff’s expert, she realized he didn’t have a basic understanding of one key to liability — the way the valve was enclosed.

  After exposing the expert’s lack of understanding, Lee sat down, rested her case and was rewarded with a defense verdict in 20 minutes.

• Do your own research Medical malpractice attorney Terry Wade recalled a case early in his career where his expert gave him exactly the conclusion he was looking for.The only problem: The opinion wasn’t consistent with the medical literature at the time.“It embarrassed me, embarrassed my expert and I lost the case,” said Wade, a partner at Robins, Kaplan, Miller & Ciresi in Minneapolis.

  Now, Wade keeps nurses in his employ who assist him in conducting independent medical research to double-check an expert’s opinion.

• Seize the teaching moment Using an expert as a teacher can crystallize what the dispute is about, Schwartz said, while humanizing the witness at the same time.“You definitely buy credibility if you’re seen as a good teacher on the stand,” he said.Attorneys that can guide jurors to subconsciously, if not consciously, attribute their better understanding of the case to what their expert provided will have an upper hand, he said.
• Spend time preppingExperts sometimes need more preparation than other witnesses in getting used to talking to a jury, said Beth Bochnak, president of NJP Litigation Consulting in Madison, N.J.“Lawyers spend so much time with a case,” she said, “that they sometimes don’t understand that what is obvious to them may not be obvious to the jury.”For that reason, Bochnak emphasized the need to prepare an expert to teach jurors in “plain English,” leaving technical jargon out of the conversation as much as possible.
• Show your cards when you canAlthough lawyers tend to hold their cards close to their chest, Lee said, showing your expert’s cards can sometimes resolve cases sooner.“I find it surprising in this day when nine out of 10 cases settle,” she said, “that some lawyers still want to save some cards for trial.”