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How To Deal With Your Expert Continued from page 17

b. Direct Examination Tis is the place to bring out negative facts that you know

the defense knows about. Prepare your expert to deal with these facts. Talk about legal standards for testimony. Make sure your

expert understands what they mean so he or she can’t get tripped up on cross-examination. See if the expert will testify to their conclusions within a reasonable degree of probability or, better still, certainty. Next, find out if your expert is 100% certain about each opinion. Regarding some opinions, this may be eminently reasonable. If so, after you elicit the legal standard, ask: “And beyond that, how certain are you?”

c. Cross-examination Basic Advice for the Expert when Answering Questions 1. Stay cool. Be comfortable and be yourself. 2. Don’t be arrogant or condescending. 3. Don’t argue with counsel. 4. Limit your answer to what was asked. 5. Listen to the question (ignore the tone of the question).

6. Tink before you answer. 7. Pause before you answer. 8. Be an expert, not an advocate. 9. Answer questions directly. 10. Be formal. 11. Speak loudly and clearly. 12. Avoid slang and jargon. 13. If you need to do so, ask that a question be rephrased or repeated.

14. Don’t guess. 15. Beware of paraphrasing or restatements. 16. Beware of hypothetical questions. 17. Beware of questions asked in a series. Often a key fact will be changed or a “zinger” later inserted.

Basic Advice for the Expert Regarding Non-verbal Communication:9 1. For short answers, look at me; for long answers, look at the jury...

2. …but, don’t look to me for answers to any questions. 3. Maintain good posture. 4. Use a moderate and natural number of mannerisms and gestures.

Specific Topics Use point-of-view analysis to prepare your expert for

cross-examination: at an hour when your phones aren’t ringing, close your e-mail program, hold your phones, and think about how you would attack your expert if you were defending the case. If you have the time, ask colleagues on the listserv what to expect from defense counsel when he or she is cross-examining your expert. You may find discovery or de bene esse deposition transcripts given by your expert or taken by your opponent. Both categories of depositions can be useful in preparing your expert for testimony. Make sure your expert can answer the question: “What is your role in this case?” without harming the case.

9 See Boccaccini, M.T. (2002). What do we really know about witness preparation? Behavioral Sciences and the Law, 20, 161-189.

Trial Reporter / Summer 2009 19

d. Deposition Specific Confirm that your expert will charge opposing counsel

the same rate as he would charge you. Make sure that your experts know how to respond to the “Do you have any other opinions (or bases)…” questions so that they are not precluded from supplementing their opinions or responding to opposing experts. Tey should specifically state that their opinions are subject to change if new evidence comes to light, and that they reserve the right to offer opinions in response to defense experts.

e. Trial Specific Find out how the expert would explain the case to a group

of 13-year-olds. Tis will aid you and the expert in simplifying your explanations. Ask the expert to look at you when giving a short answer and at the jury when giving a longer one. Tis will appear far more natural than if the expert turns to the jury to give every answer. Discuss dress. Advise them to leave the Ferrari home. Try to root out any nervous ticks or habits.

f. Courtesy Let the expert know as soon as you no longer need their

services. Tis should keep you from receiving an invoice after you’ve disbursed the settlement proceeds. Also, unless you know they don’t care, let the expert know the result. Many of them actually do care about our cases and like to know what happens to them.

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