Roger M. Rosen Working with a novice expert witness
A novice expert can be harder for the defense to impeach, but you need to prepare such a witness more carefully Sometimes lawyers come across some-
one whose expertise makes her suitable to give expert testimony in a case, but this person has never previously been retained as an expert in litigation. This lack of experience may have a positive aspect in that the expert is not subject to being attacked as a hired gun who makes a liv- ing giving trial testimony, often mostly for one side, perhaps retained previously on a number of occasions by the same lawyer. But the novice expert may be unaware of the basics that experienced experts take for granted. This article presents a check- list of items of particular interest to con- sider when working with such a novice expert witness (referred to below as “she”). 1. Explaining the expert’s assignment at deposition and at trial. The novice should be prepared to
explain her understanding of her assign- ment for the case, its limits, whether there were obstacles she faced in carrying out
the assignment, and how she overcame those obstacles. 2. Consider having a prepared list of opinions for use at deposition. Often in state court litigation, the
expert will not have prepared a discover- able report to produce prior to or at the deposition. In its place, having a brief summary of opinions, to bring to and to produce at the deposition may be very helpful. This can limit the risk that the expert may temporarily forget an opinion or a basis for her opinion, and can help make the expert at ease by helping the testimony to proceed in the order in which the expert is comfortable discussing her opinions. 3. Conclusions first, followed by explanations. As distinguished from normal conver-
sation, the expert should be prepared to give opinions first, then explain the bases for her opinions, in order to be more persuasive with a judge and jury.
4. The expert should have a theory of the case and should try to tell a story, to the extent possible. A novice might concentrate on the
trees and lose sight of the forest. The novice should be reminded of the need to have an overall theory of the case, and to relate her opinions within the confines of a narrative, a story, if possible, to provide a framework that ties together the dis- parate facts and opinions, for ease of jury comprehension. 5. Be prepared to testify about the level or degree of certainty of the expert’s opinion while being cautious about absolutes. A novice might not know that to be
useful, her opinion must be stated to a minimum level of certainty, which may be expressed differently in different cases. The novice may need your help in prepar- ing to explain the degree of certainty of her opinion and why she is that certain.
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EXPERT WITNESS 82— The Advocate Magazine JULY 2011
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