Novice — continued from Previous Page
over-concede in order to appease or please the cross-examining counsel, who is not your friend. An expert can gain credibility by being prepared to agree upon that which is uncontested, without being led into unwanted concessions. 13. Be prepared to resist being bullied into answering questions for which there is no simple answer. An expert should be prepared to
resist bullying attempts to force her to answer questions with a “yes” or “no” answer, or questions such as “how would you grade that party’s safety precautionary conduct, on a scale of 1 to 10, or by letter grade, A, B, C, etc.,” where such answers would not be appropriate, or would be misleading, or where over-simplification would not serve the interests of educating the judge and jury as to the matter in a prudent way. 14. Stay calm, think before answering; don’t become unnecessarily argumentative and emotional. These are things that come naturally
to the experienced expert. The novice may need this to be pointed out to her.
15. Take the time to read any document that is the subject of a question and to understand the question. Again, the experienced witness may
know this as a rule of thumb, but the novice should be reminded to take her time, to read the document she is being questioned about at deposition and trial and to be sure she understands the question as it relates to the document. 16. Critique the opposing expert’s opinion and work product in a professional manner. The expert should be prepared to
explain how she disagrees with opposing experts and why, when the opposing expert’s opinions have been identified, in a professional and respectful manner, while demonstrating why her methodology, analysis and opinions are superior. 17. Watch video-taped depositions of other expert witnesses. It may be useful for the novice expert
to watch video-taped depositions of other experts to see how the process works.
18. Review resume, qualifications, Web site, publications etc. both before retention and again before disclosure and testimony. Even more so than with experienced
experts, counsel should be diligent to ensure that the novice expert’s CV and other aspects of her public persona are accu- rate and not overstated. Go over her educa- tion, professional experience, licensure sta- tus, professional group membership and activities, publications, Web site, Facebook page, etc. as carefully as the cross-examining attorney might do to ensure that there won’t be any embarrassment over claims that are not completely accurate. A novice may be less sensitive to the potential consequences resulting from the discovery of inaccuracies here than an experienced expert. 19. Discoverability of the contents of the expert’s file. Counsel needs to explain at the begin-
ning of the retention that at some point the expert will have to produce her entire file, it can and will be used against her, so she must be cautious about what she puts into the file and what letters and e-mails she sends to counsel. (See Code Civ. Proc., §§ 2034.210, 2034.260, 2034.270.)
84— The Advocate Magazine JULY 2011
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