The Ten Most Important Strategies for Use of a Human Factors Expert Witness

A good human factors expert witness in general should have excellent credentials (e.g., academic background and degrees, publications, research projects, etc.). They should also have practical experience in the specific area of testimony (e.g., designed and tested warnings in the field), a complete working knowledge of the facts of the case and the ability to communicate clearly, completely and succinctly their opinions and supporting bases to a lay jury. The following ten strategies can help the lawyer maximize the effectiveness of his or her human factors expert witness.

1. Hire the human factors expert witness early, preferably at the beginning of discovery. Last minute retention of experts, typically prompted by actions of the opposition, usually result in hasty and inadequate preparation of the expert, sloppy reports, depositions or trial testimony, and strained relations between the attorney and the expert. Consequently, there is much to be gained by hiring the expert early.

2. Communicate completely and clearly your expectations of the expert’s role. This includes the areas you wish addressed and your understanding of his financial arrangement with you. Reducing ambiguity both in the expert’s charge and charges will save time and money.

3. Immediately after retaining the expert, ask for his resume, copies of his relevant publications and transcripts of related deposition or trial testimony.

4. Provide the expert with ALL case-specific materials. This includes the complaint, interrogatories and exhibits, deposition transcripts, photos and videotapes, applicable standards and regulations, promotional literature and relevant correspondence, etc. Jury studies have shown that the greatest weakness in a case (when a partisan juror attempts to persuade other jurors to his side) is insufficient information given to the expert witness.

5. Communicate frequently (by phone or in-person) with your expert as he or she reviews the relevant materials and conducts the appropriate tests and research. This will help you understand his preliminary findings and opinions. Therefore, you must know in advance of his deposition or trial testimony exactly what your experts will say.

Related Article: Samples of Effective Product Warnings

6. Even if you don’t use the expert in deposition or trial, use him as a pretrial consultant to evaluate the product, the incident reconstruction, other testimony and reports, help prepare interrogatories, help prepare questions for plaintiff’s or his expert’s deposition, trial testimony or cross-examination, etc. The expert should be asked to provide you with a candid assessment of the case, its strengths and weaknesses.

7. Arrange a site visit for your expert, if appropriate to the case. This is a good time for you to assess the expert’s personal skills, style, appearance and communicative abilities. When possible, it’s a good time to visit the courthouse to familiarize the expert with the location of the trial.

8. Remind the expert to use language and examples relevant and understandable to the lay juror. As well as to speak clearly and succinctly, to be polite, courteous, responsive and to use short answers. If appropriate this could even be “yes,” “no” or “I don’t know,” instead of long-winded lectures, highly technical language and evasive approaches.

9. Rehearse for the deposition and/or trial testimony. During the rehearsal, brief the expert on the style and personality (if known) of opposing counsel, the judge and jury demographics. The latter is especially helpful in selecting appropriate examples, illustrations and exhibits. Ask the expert to provide you with an outline of his testimony along with help designing the exhibits.

10. Pay your human factors expert witness within 30 days of receipt of his invoice(s) for his time and expenses. Nothing irks an expert more than to wait months (laced with lame excuses) for his payment for the effort spent on your behalf. Remember, you, not the defendant or insurance company, are his client and are responsible for his bill.

This highly qualified warning label expert witness is the founder and CEO of the nation’s largest designer and evaluator of warnings and safety communications. He has over 35 years of experience in litigation research, warning label research & design, and product & warning label testing. His clients include Fortune 500 companies, as well as educational and governmental organizations. He is the author of several books and scholarly articles that address the issue of the efficacy of warnings and organizational communication. He has testified as a warning label expert witness both in state and federal courts throughout the U.S.

Expert’s Bio: Location: New York Ph.D., Organizational Communications / Industrial Psychology / Safety Communications, Purdue University Lecturer, routinely lectures throughout the US, Canada, Mexico, and over 25 other countries Author, 10 books and over 500 articles / papers on organizational and safety communications Current, Chairman and Group Coordinator, Expert Witness Company Current, Founder and CEO of the nation’s largest designer and evaluator of warnings and safety communications