Big Wins with Expert Witnesses: 8 Lessons From Attorneys

1. Know what kind of expert you need

“High-stakes litigation or not, the kind of uniquely situated expert you need will always depend on the facts of the case. The difficulty is that sometimes, looking for an expert can be like looking for a needle in a haystack. Narrowing down the class of experts you may need in your case is a good step towards finding the right witness.” - Ron V. Miller Jr. - Miller & Zois, LLC

Likewise, attorney Anthony Castelli explains that “sometimes the exact expert isn’t the easiest to find. Let’s say you have a case involving an exploding tire: experts exist on this subject, different than just a specialist in tire types, or perhaps even a mechanical engineer who is specifically familiar with exploding tires.” In many instances, experts in similar fields have overlapping knowledge, so it helps to know the kind of expertise you need to best explain some specific aspect of your case to a fact-finder.

2. Look for an expert with credibility

“Credibility is the most important thing when it comes to expert witnesses. There are two things that make an ideal expert witness: 1) ‘likeability’, and 2) ‘gravitas’- meaning a necessary degree of seriousness.” - Kevin Pflug - Seigel Capozzi

Mr. Pflug further notes that having an expert with the best credentials could mean little if the expert is not able to leave an impression on the jury. The jury needs to find the witness credible, and sometimes attorneys become accustomed to viewing the expert through the lens of a lawyer instead of a juror. After working with experts so often, attorneys can sometimes get used to dealing with these types of individuals, for example becoming familiar with industry terminology, making it harder to remember that jurors are not as similarly exposed to expert witnesses, or the knowledge they have to offer.

Kevin Pflug says there’s an element of “gut instinct” involved in determining whether an expert is credible and whether a jury will find the expert to be credible as well. Ron Miller Jr. tells us that “it’s important to talk to different experts- the process isn’t simply linear, and much of it depends on the expert witness and their particular specialization. Some experts can be more approachable than others, it’s something you have to explore in the beginning.”

3. Vet and Screen Your (And Your Opponent’s) Experts

“From depositions I got from other cases [the opposing expert] handled, I got him to admit he lied to the jury when he said he was a safety expert, as I had a deposition from a month before where he specifically stated he was not such an expert.” – Bob Bianchi – The Bianchi Law Group, LLC

“The case involved expert testimony at trial on a construction injury case where my client was run over by an asphalt truck that was loading up at his place of employment. My client was run over as he was darting behind the truck to go to part of the facility that has vending machines. The driver not knowing he hit my client then pulled forward running him over again as he lay on the ground.

The defense refused to offer my client any settlement, arguing that it was my client’s negligence by walking behind a moving truck. They hired an expert to state my client was negligent for trying to “beat the truck” when it was backing up, and that the facility had no way to prevent such an accident.

They rested their entire case on their expert who was to argue that the primary cause of the accident was the negligence of my client.

At trial, I crossed their expert for 3 days. In the end, I got him to actually admit that the primary cause of the accident was an unsafe facility that allowed trucks to back up to load; that they had no safety traffic control measures; that they knew workers walked in that dangerous path; they had no hard hats, safety vests, flaggers; and most importantly knowing it was dangerous, never prohibited the conduct, etc.

From depositions I got from other cases he handled, I got him to admit he lied to the jury when he said he was a safety expert, as I had a deposition from a month before where he specifically stated he was not such an expert.

My expert on the other hand was a seasoned person, likable, and did great with the jury. He worked in government doing safety analysis and was more of an expert from experience than academia.

Eventually, the defense expert admitted that “the evidence does reveal that the trucking company was the primary cause of this accident.”

The jury came back 95% negligence for defendant; 5% for my client. They awarded my client 11 million dollars and his wife 3 million dollars. It was an amazing David and Goliath story.”

4. A Great Expert Report Can Win Your Case

“After consulting with our expert and having her review all the documentation, our expert drafted a lengthy, 15-page expert report with color photos comparing the signature to other exemplar signatures we knew were signed by the casino customer. It was very convincing and professionally prepared.” – Jim Hunt – Tenaglia & Hunt, PA

While defending a casino client against a claim that one of their customers did not sign an important contractual document, we retained a top-notch handwriting expert to prove the individual did in fact sign the contract.

Our handwriting expert had all of the necessary qualifications, former high level government experience, and top certifications. Our expert also had significant experience writing expert reports and testifying in court.

Our adversary hired an expert who obtained a handwriting certification from a private online course that was investigated for fraud. Our adversary’s expert had little, if any, experience testifying in court or drafting expert reports.

After consulting with our expert and having her review all the documentation, our expert drafted a lengthy, 15-page expert report with color photos comparing the signature to other exemplar signatures we knew were signed by the casino customer. It was very convincing and professionally prepared.

After our adversary’s expert reviewed our expert’s report, our adversary’s expert actually wrote me a letter stating that he changed his opinion and now agreed with our expert, finding that the contract was signed by the casino customer. Our adversary therefore had no valid claim. As a result, we were able to obtain an excellent settlement quickly thereafter.”

5. Presentation Skills Are Key

“I conducted direct exam of our “blowout preventer” expert, including a half day tutorial using cutting-edge 3D animations explaining how a blowout prevent works, how this one didn’t, and why it failed…the expert testimony, including the blowout preventer expert and animations, were extremely powerful and had juror’s attentions entirely.” – Dane Ball – Smyser Kaplan & Veselka, LLP

In Feb. 2016 our firm won an acquittal in the white-collar/environmental criminal trial of former BP “well site leader” Robert Kaluza, who was aboard the Deepwater Horizon offshore drilling rig when an explosion led to 11 deaths and the largest oil spill in U.S. history. Mr. Kaluza was charged with negligent manslaughter and Clean Water Act pollution. We obtained dismissal of the manslaughter charges before trial. The trial on the Clean Water Act charge took approximately two weeks.

For Mr. Kaluza’s defense (case-in-chief) we called just 3 witnesses about the events on the rig, and all 3 were experts. I conducted a direct exam of our “blowout preventer” expert, including a half-day tutorial using cutting-edge 3d animations explaining how a blowout prevent works, how this one didn’t, and why it failed. It is impossible to say exactly what wins a trial; but the expert testimony, including the blowout preventer expert and animations, were extremely powerful and had jurors attentions entirely.

Since the Deepwater Horizon victory is in the running for the biggest win against the federal government in a criminal case this decade, it is certainly my and our firm’s biggest win involving key expert testimony.

Looking for an expert witness? Connect with a highly credentialed and pre-vetted expert in any discipline.

Picking the right expert is half the battle. Also, expert testimony is better—more authentic, more believable—if the expert truly comes to a conclusion that supports your case on his or her own; rather than the attorneys strongly guiding the expert to the conclusion. Indeed, cross exam can be a nightmare when an expert hasn’t thoroughly worked through the issues themselves to an opinion consistent with your case.

In addition, relatedly is key – expert testimony is best when phrased and worded in the experts words, not the attorneys.

Don’t rely on the scope of direct “rule”—expect an expert to be cross-examined on issues unrelated to his or her precise opinion. That is, if you have 2-3 issues in a case—perhaps a different expert addressing each—you must know your expert’s opinions on those issues that will not be part of direct. If those issues arise on cross—after all, judges are unpredictable, and you should prepare for the worst ruling—it is devastating to have your own expert contradict another expert or your position on another issue in the case.”

6. Experts Can Provide Clarity in Complex Cases

“One of the main issues in the case was whether dissolving the corporation would diminish the value of its assets. We used experts to demonstrate that the dissolution of the corporation and the appointment of the winding-up agents would dramatically enhance the value of the corporation’s assets.” – Joel A. Goldman – Clark & Trevithick

The largest case I was ever tried was filed in the Los Angeles Superior Court by two minority shareholders of a corporation to obtain a court order to dissolve the corporation. This action was filed pursuant to the provisions governing dissolution of corporations in the California corporations code. The trial Judge ordered the dissolution of the corporation for cause and thereafter appointed “winding-up agents” to oversee the dissolution of that corporation and maximize the value of its assets. The winding-up agents had a function similar to a court appointed receiver. Ultimately, the assets of the corporation were sold to the highest bidder for approximately $350,000,000. One of the main issues in the case was whether dissolving the corporation would diminish the value of its assets. We used experts to demonstrate that the dissolution of the corporation and the appointment of the winding-up agents would dramatically enhance the value of the corporation’s assets.

It should be noted that essentially all of the early litigation, including a five-day evidentiary hearing took place in the writs and receiver department of the Los Angeles Superior Court and the winding-up agents were appointed approximately six months after the case was filed. Thereafter, the writs and receivers Judge retained jurisdiction over the winding-up of the corporation for several years. There were numerous hearings in front of that judge relating to the issues of valuation and competing economic analysis.

Approximately two and a half years after the case was filed, the writs and receiver Judge retired and the case was transferred to Central Civil West and a new Judge took over the administration of the case for several years. There were numerous issues that repeatedly came before the court concerning valuation and economic fairness to the competing stakeholders. Ultimately, the case was resolved in a multi-day hearing on a global settlement involving the various stakeholders including creditors, investors, the party that purchased the assets, the winding-up agents and original plaintiffs. Put simply, there were literally well over 100 court hearings in this case, many of which dealt with competing economic analysis of the various situations that occurred.

7. It’s Vital to Be an Expert Yourself

“Each area of expert testimony requires that the attorney know and understand the underlying science and techniques used by the government before employing an expert, but having a comprehensive understanding of the science…also permits a far more effective cross examination of the government’s witnesses.” – William J. Maze – Maze Legal

“Obviously, in DUI defense practice, experts help by countering the government’s evidence. We have a police officer who provides his or her opinion that the motorist was intoxicated, describing signs of intoxication in stock fashion, and the officer’s opinion is confirmed by a magical black box that says the defendant is guilty. In death cases, the defense also needs a highly qualified accident reconstruction expert because the government will avoid making any statement that might help the defendant.

In one significant case, a Michigan State Police accident reconstruction expert refused to admit that the decedent’s vehicle backed up onto the freeway, colliding with a vehicle traveling at a high rate of speed. He acknowledged that the vehicle’s transmission “appeared” to be in reverse. He acknowledged that reverse light filaments were burnt out, and that was consistent with the reverse lights being engaged at the time of the collision, but he would not admit that the reverse lights were engaged at the time of the accident. He admitted that the accident occurred well-within the lane of travel, but he would not admit that the vehicle backed up onto incoming traffic. Without our own expert to dispute this analysis we would not have been able to counter his testimony

Each area of expert testimony requires that the attorney know and understand the underlying science and techniques used by the government before employing an expert, but having a comprehensive understanding of the science behind drunk driving tests also permits a far more effective cross examination of the government’s witnesses.

Using a qualified expert witness in a drunk driving case has the added benefit of adding credibility to the defense. When a scientist or a retired police officer is willing to stand up and testify for the accused, it’s powerful. This is particularly true when those witnesses are open and candid with the jurors, especially when government experts provide evasive answers, refusing to provide straight forward answers to simple questions.”

8. Experts Can Make The Intangible Concrete

“The case involved a woman who suffered a traumatic head and brain injury in an accident. Her injury left her with cognitive impairments, and the economist was able to put a dollar amount to her loss of household abilities and hedonic damages” –Jared Staver – Staver Accident Injury Lawyers, P.C.

“I am a personal injury lawyer based in Chicago. I’ve been in practice for 16 years and helped countless clients who have been the victims of negligence and accidents.

Experts are often a useful tool to help support a plaintiff’s case, especially in the context of a personal injury. Independent medical evaluations are routine in car and truck accident cases, as is the use of medical experts to testify about the extent and cause of a plaintiff’s injuries.

However, medical experts are far from the only type a lawyer might use. I once used an economist as an expert in a case that resulted in a $3 million settlement. The case involved a woman who suffered a traumatic head and brain injury in an accident. Her injury left her with cognitive impairments, and the economist was able to put a dollar amount to her loss of household abilities and hedonic damages, a type of damages plaintiffs can recover in Illinois for their loss of enjoyment of life.

The economist used life tables to calculate the dollar value of my client’s impairments and their impact on her life. With that evidence in hand, we were able to settle the case in a way that was favorable to my injured client and remains one of my biggest wins.”