Tips for Working With a First-Time Expert Witness

When finding an expert witness, a first-time expert witness can prove invaluable to your case, provided the expert is properly prepared for their role. To work effectively with an expert who is new to litigation, it’s beneficial to prepare and educate the witness throughout the process.

Discuss Expectations

Begin a relationship with a first-time expert witness by discussing your expectations for their participation in the case. For example, explain which tasks require their expertise. Do you need the witness to perform certain tests or analyze the findings of an opposing expert? Will they need to testify at trial, or perhaps, all of the above?

During this process, take time to listen to the expert’s expectations for the relationship as well. Educate the expert, when necessary, on discovery rules or courtroom proceedings. This will aid the expert in forming clear expectations that align with yours.

When working with a first-time expert, attorneys will need to view the relationship from a new perspective. Unlike an established expert, a first-time expert does not know which questions to ask or what to expect. An attorney who can anticipate and answer these questions enables the expert to move forward with confidence.

Review Your Expert’s Background

Although the first-time expert witness will not have participated in any prior legal matters, the expert may still have ties to another party in the case, such as through former employment. Don’t skimp on conflict of interest checks. Have an open discussion with your expert about their current and prior professional affiliations to make sure they are fit for the case.

Create a Retainer Agreement

Creating a retainer agreement early in the process can help clarify expectations for both parties. The retainer agreement also gives the first-time expert witness a valuable reference to check when certain questions arise.

As with any retainer agreement, ensure the first-time expert’s retainer describes the scope of services to be performed in detail. Include a summary of the expert’s general preparation tasks, the work they will complete, and specific mentions of any deadlines.

Also in the retainer, it’s critical to include information on how the expert witness will be compensated. A first-time expert witness may not be familiar with the difference between fees and expenses, for instance. They may also not be familiar with the process of providing periodic billing statements to the attorney. Walk your expert through these processes and commit them to writing in language the expert can review easily.

Explain the Litigation Process

The courtroom atmosphere is full of unfamiliarity for a first-time expert witness. Help build the expert’s confidence by walking them through the various phases of trial. This includes a primer on jury selection, opening statements, and undergoing voir dire. Experts will also need guidance on the educational aspects of their testimony for the jury and what to expect during cross-examination.

Provide Your Expert with the Lay of the Land

Different courts and different jurisdictions have very different approaches to the practice of law. Some places are more formal than others. While you know what is expected where you practice, your expert won’t have that same experience.

Let them know about local rules such as whether they can expect to be able to bring their cell phone into the courthouse, whether they can bring a beverage past security, and other local rules that can impact their comfort level. If your courthouse bans open-toed shoes or bare shoulders—even if you think no self-respecting expert would wear such a thing—make certain you inform your expert about such rules. If security at your courthouse is particularly onerous, or if the delays are legendary, make sure to relay such information to your expert so they can plan ahead and budget their time accordingly.

Prepare Them For Cross-Examination

Prepare to spend significant time focusing on cross-examination as well. An unprepared first-time expert witness is likely to experience cross-examination as an attack. It’s likely the opposing counsel will question their reasoning, their credentials, and even their worth as a professional. Begin by demystifying cross-examination itself by explaining its purpose and function within trial proceedings.

Then, encourage the expert to think carefully about their responses to each cross-examination question. For instance, an inexperienced witness is more likely to get stuck on autopilot if the answer to a long list of questions is “yes”, only to be thrown off when the last answer is “no.” Encourage your expert to stay alert for such tactics.

Collaborate on Exhibits and Visual Aids

Both expert confidence and jury education can benefit from a thorough discussion of exhibits well in advance. Talk to your expert about whether a visual aid would help make their testimony more relatable for the jury. Perhaps your expert is comfortable using PowerPoint, presenting a model, or a set of images in court. Work with the expert to create these exhibits within disclosure deadlines.

Discuss Exhibits in Advance

Sometimes an expert will arrive for testimony with a PowerPoint or other exhibit in hand. Unfortunately, in most cases, these exhibits go to waste because they weren’t disclosed consistent with the discovery schedule the judge set in the case. If you think an expert’s testimony would benefit from a visual exhibit, discuss this with your expert well in advance. (Helpful practice tip: It almost always will!) Make certain they understand the deadlines for disclosure of exhibits as they relate to your case.

Discuss Logistics in Advance

When preparing an expert witness for court, it’s important to ensure their overall well-being leading up to the trial. Plan for any anticipated delays in travel, and that your expert can acquire adequate food and rest. Making these plans well in advance will allow your expert witness to feel more comfortable and confident when actually in court.

Orient your expert to logistical details familiar to attorneys but typically unknown to a first-time expert witness. This can include: Where should you park at the courthouse? Are phones or coffee allowed through security? Are certain sartorial choices ill-advised, such as open-toed shoes, for the courtroom? Help your expert plan ahead for the day itself, so that they can focus on their main task. Their only concern on that day should be to help the jury to understand key aspects of your case.

When Travel is Involved:

Minimize Connecting Flights

The cost of the flight doesn’t matter if the expert doesn’t arrive. While a flight with a connection may be cheaper, each leg of the journey has potential for cancellation, late departure, and missed connections. Get your expert to their destination as quickly and efficiently as possible.

Allow Extra Time for Inclement Weather and Other Unforeseen Circumstances

Booking travel for the day before testimony is well worth the extra fee for your expert’s time. In addition to random cancellations due to broken parts, overworked flight crews, and delayed connections, the weather can also result in cancellations. For example, if your expert is flying out of the Midwest between December and March, the possibility for a snow delay looms large. Bottom line: arrange to have your expert come in the day before they testify, preferably earlier in the day. This way, if a particular flight is canceled, there is a greater likelihood the flight may be rescheduled for later the same day.

Be Considerate of Your Expert’s Well Being

Do not ask your expert to take the red-eye or make other requests that will impact their ability to be fresh and professional while on the stand. Instead, ask your expert what flight works best for them. If they prefer one airline over another, honor that if possible. Make certain to discuss with the expert your expectations upon arrival. Should they take a cab to the hotel? Will you send a driver? Is mass transit the best option? Do not assume your expert knows what you want.

A Green Expert May be the Way to Go

Expert witnesses with litigation experience are often an attorney’s first choice to retain. But an expert new to the expert witness arena shouldn’t be passed over if their credentials are the best fit. With some standard preparation areas, any professional can learn the legal ropes and be ready to contribute effective testimony.

Be Kind

Most people who have not testified as experts have also not been in a courtroom for any reason. Their knowledge of what goes on in a criminal or civil trial is likely based on what they have seen on television or war stories from colleagues. Neither of these is a good foundation for understanding how the court system works and what is expected of experts. Be kind to your expert. Take the time to think about what they may not know, and do your best to fill them in.