Usually, the line between the role of the attorney and the role of the expert is obvious, but there are some points – perhaps based on type of expertise or the rules of the venue – where it can seem a little hazy. The ideal situation is one where the attorney and expert fit together perfectly. They know their roles and responsibilities, and they address those issues with conviction.
In order for your client to have a successful outcome, the judge and jury need to understand and believe their story. It is worth your time and the expert’s time to make sure everyone is on the same page, follows the same script, knows their roles, and understands where the story is leading when you begin.
There is a dance involved in report writing. Experts need enough time and information to create excellent reports; attorneys often want to review the reports, but need to be cognizant that any change requests not impact the expert’s opinion or voice; and in the background confidentiality and discovery lurk over all the communication, with rules dependent on the given jurisdiction.
Expert witnesses play myriad important roles in a case, including among others evaluating cases and crafting strategy. Arguably the most important role is as a teacher – educating the attorneys, court and jury about the aspects of the case that fall within their expertise.
Cross examination can be stressful for experts and cause them to inadvertently slip up, so many legal teams will spend significant time prepping an expert. Our experts shared some tips on how to be prepared.
Being viewed as an expert before ever stepping foot in the courtroom, or with little to no testifying experience starts with respect in the field. Active professionals are the most likely to achieve this level of notoriety through participation at industry-specific events and organizations, notable certifications, and written work in trusted publications.
While experience in your field is extremely significant to your success as an expert witness, other factors are crucial to truly being effective. Many of these factors fall under the umbrella of knowing yourself.
Legal teams can help position their experts for success by ensuring they are equipped with everything needed to be convincing and authoritative in the role. Even the most experienced experts need preparation prior to testimony.
Earlier this year, we had a conversation on our podcast with Insurance Claims Expert, Kevin Quinley. He shared some gems about how to write a successful expert witness report. He highlights timelines, navigating your first draft, breaking it into sections, proofreading and knowing your audience ahead of time for the draft.
Many unsuccessful expert witness depositions could have been prevented with the right preparation and support. This can be said for even the most seasoned experts, as it should never be assumed preparation is not required.
Over the last 27 years, we have coordinated and participated in tens of thousands of expert witness interviews. We’ve seen it all, from perfectly executed interviews to missed opportunities for critical lines of inquiry. Our experience highlights the importance of approaching expert interviews with the right mindset and preparation. It’s easy to get caught up in the details and strategy surrounding the case and miss the chance to gain a better understanding of the expert’s strengths and weaknesses.
VR presents an interesting opportunity in the courtroom, allowing juries to partake in a simulation of experiences that brings them closer to events being discussed. Depending on an expert’s practice area, some consider VR a powerful tool in the aid of testimony, helping relay complex information and factual issues.
The past two years have radically changed legal workflows, taking an already underway meandering course towards using remote collaboration tools and forcing it into a strong current. Historically, litigation preparation has included ample in-person meetings, collaboration processes, and court appearances. Now, for better or worse, virtual collaboration and communication tools are becoming a staple within litigation and increasing the need for remote collaboration protocols.
Thorough preparation for hostile supervised source code review, deposition and testimony is vital. The best way for an expert witness to prepare is to over-prepare. Competent experts prepare until they get it right.
There are relatively few absolute truths. The findings of science and technology are empirical — based on evidence and/or observation and verifiable through evidence and observation — and empirical truths are typically nuanced. It is possible to compute the probability that patterns in software and data are random, and this result can be used to form an opinion.
While the role of an expert witness remains unchanged, the shift toward virtual operations requires a nuanced approach to preparation, as many experts, attorneys, and judges are still new to this change in litigation procedures and techniques.
While some litigation receives little to no attention, allowing the proceedings to play out quietly, other cases catch the eye of the news or the public. When this happens, it is up to the defense lawyer to ensure a fair trial. Because of this, lawyers need the right toolbox to address pretrial publicity before it gets out of hand.
Commercial litigation can be a war of attrition with heavy legal expenses building over time. Some strong cases are never pursued because the company or firm lacks the resources to see it through. While litigation insurance can be helpful for recuperating losses, many cases still need funding to go to trial.
With years of experience in the expert witness field under his belt, Ashish Arun specializes in the intersection of law and technology. As the Principal Owner of Expert Witness Profiler, Ashish provides detailed expert witness reports to attorneys so they can be more prepared in court. So, what kind of information do these reports provide, and why should you order one for your next case?
Working with an expert witness is a nuanced process. From search and retention to consultation and trial, there is no one way to ensure a smooth collaboration and successful outcome. However, some attorneys have really honed and refined this process. Recently, we spoke with Brian Weinthal, who is one of the world’s leading experts on…
H. Bernard Tisdale has been practicing employment law for over 25 years. During this time, he has covered a wide variety of cases—including those focused on employee safety and health—that have required the insight of an expert witness. In these cases, confidentiality and privilege are essential for protecting the expert’s work and, ultimately, winning the case. But, with varying rules around attorney-client privilege and work-product protection, how do you maintain confidentiality while still getting the most out of your relationship?