Mistakes lawyers make with expert witnesses

By Sylvia Hsieh
The Daily Record Newswire
BOSTON, MA — At best, expert testimony can be the viewfinder that brings blurry evidence into focus for the jury.
At worst, an expert witness can confuse, bore or offend a jury.

With the types of cases requiring expert testimony ever expanding, lawyers aren’t spending enough time thinking creatively about how to get their cases into the first category, says Edward Schwartz, a trial consultant in Lexington, Mass.

“Too many attorneys treat their expert testimony as just another thing on a list they need to tick off,” he said. As a result, an expert’s talent is often wasted.

Here are some tips on making the most of expert witnesses:

Know what you’re vetting

A stellar resume isn’t the only criteria for hiring an expert. Too often an expert looks great on paper but is not an effective communicator.

Given how important the expert’s report will be, make sure your expert can write well, and do so on a deadline.

“An expert’s technical expertise can be vast and impressive, but how good is [he or she] at getting a report together and in time?” said Linda Holstein, an employment and commercial litigator at The Holstein Law Group in Minneapolis, who says she searches the Internet for an expert’s written work and calls other attorneys the expert has worked with.

Think about how your experts will come off in person if your case goes to trial: Do they talk like a regular person? How would they hold up on cross-examination? Would a jury like them?

“You have to see how well they can work with you. Are they problem solvers or just drones?” said Holstein.

She said she vets experts as though she were interviewing a job applicant, asking them to tell her about the most difficult cross-examination questions they have faced and how they responded, or what would happen if they had to change plans mid-stream in a case. Don’t overdelegate.

Another mistake lawyers make is leaving an expert to his or her own devices.

“There’s a tendency to assume experts know what they’re doing and have examined all the facts, and then it turns out there’s something very fundamental they haven’t looked at,” said Jeannine Lee, a product liability defense attorney at Leonard Street & Deinard in Minneapolis.

In one case, Lee defended the maker of a gas valve against a claim that it caused an accident.

As she cross-examined the plaintiff’s expert, she realized he didn’t have a basic understanding of a key to liability — the way the valve was enclosed.

When she asked him about a second door to the valve, he looked surprised and said, “Oh, if there were two doors, then the gas valve didn’t have anything to do with the accident.”

Lee sat down, rested her case and got a defense verdict in about 20 minutes.

“The other lawyer assumed the expert knew what he was talking about and had not walked him through the details,” said Lee.

Do your own research

Many years ago when he first started out as a plaintiffs’ medical malpractice attorney, Terry Wade had a case 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,” he said.

Now, Wade keeps nurses on staff and they double-check experts’ opinions with their own medical research.

“If it’s an obstetrics case, I pull out the current textbooks and compare it with what my expert told me. If it’s an issue involving hypertension in pregnancy, I compare it with what
the American College of Gynecologists says. If it’s a case involving anesthesia, such as propofol, I compare it with the manufacturer’s guidelines,” said Wade, a partner at Robins, Miller & Ciresi in Minneapolis.

Seize the teaching moment

Some lawyers don’t think creatively enough about how to use their experts to teach the jury, said Schwartz.

Using your expert as a teacher can crystallize for the jury what the dispute is in the case and humanize your expert at the same time.

“People who are experts in these fields tend to be rather passionate. After all, they went into these fields because they found it fascinating. ... A coal-powered electric plant may not be interesting to the average person, but if your expert is an engineer who works on these things and can demonstrate [his interest] in an honest and open way, it makes the expert more accessible to jurors,” said Schwartz.

Showing your expert’s personality also reduces the suspicion that he is a hired gun, he added.

Spend time prepping

Experts need the same, or more, prep work as a fact witness in getting used to talking to a jury.

“Some lawyers think, ‘Well, this person is smart,’ but it’s not a matter of being smart. It’s a completely different skill set” to talk to a jury, said Jill Schmid, a senior consultant at Tsongas Litigation Consulting in Portland, Ore.

An expert’s tendency to use technical jargon can make jurors’ eyes glaze over, or worse, an expert who talks down to jurors or appears arrogant can completely turn a jury against your side.

“The mistake I keep running into is lawyers just feel they know the case so well that they don’t necessarily think about the jurors, that they need to be taught in plain English,” said Beth Bochnak, president of National Jury Project/East in Madison, N.J.

Bochnak suggests asking an expert to pretend he or she is explaining something to a spouse, or speaking at a high school.

Bochnak often works with experts on honing the way they get their point across, such as using graphs, metaphors or just vivid language.

“People learn in different ways so it’s very helpful if you can use a visual example and a verbal example. If someone shows me a graph, it doesn’t mean much to me, but if someone shows me a pie chart it does — that’s just the way I learn,” said Bochnak.

Another mistake is not reinforcing an expert’s testimony enough.

“After each important segment, ask the expert ‘So, if we were to summarize...,’” said Schmid. “Even if the jurors missed the 20-minute explanation, they will get the bottom line.”

Show your cards when you can
Although lawyers will tend to hold their cards close to their chest, Lee, the product liability defense attorney, says that showing your expert’s cards can sometimes resolve cases sooner.

In several cases, she has gotten rid of cases early, either by a plaintiff’s dismissal or on summary judgment, by revealing what her expert has to say.

“I think you want to be judicious about sharing information an expert has, but I find it surprising in this day when 9 out of 10 cases settle that some lawyers still want to save some cards for trial. I’m like, ‘Why? For Heaven’s sake, show your cards.’ I think it goes for the plaintiff’s side as well,” Lee said.

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