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Shorten Your Learning Curve as a New Expert Witness

January 25, 2024
quick learning concept, legal

By Noah Bolmer

Expert witnessing is a dynamic endeavor, with pitfalls to avoid and opportunities to harness. Through experience, you will find a rhythm that works for you and your clients, but being prepared is always the foundation to success.  

New Expert Witnesses Are at a Disadvantage 

A lack of experience places new expert witnesses at a disadvantage, especially without mentoring. Expert Dan Arthur overcame a difficult start by re-framing failure as an opportunity to learn:  

Let me let me tell you about my first expert experience [. . .] in the first case that I did, I got pulled in the second week of my employment with EPA. I was the only petroleum engineer there, and they thought, “You will be able to handle this.” On the other side of the table were two experienced petroleum engineers, each having 30 years of experience. They were talking about things I understood because I worked there. Then, they started talking about acronyms and other things that I did not know. I did not respond, and the other counsel tore me up because I did not know what they were talking about. Let’s just say we did not do so well. I learned many lessons, and the next night I got the acronym book from the EPA [. . .] that first time I did not have mentors. I did not have people telling me what to do. I had to learn by myself. Failure creates learning. 

Keeping calm in the face of intense questioning is a skill that comes with experience. Dr. Alice Berkowitz shares her first expert experience:  

Did I feel adequately prepared? No, the first time I appeared as an expert [. . .] I was on the stand in front of two well-known attorneys who went after me like crazy which, no one told me was going to happen. [. . .] I was young, and it was scary. At lunchtime, they both said to me, “Let’s go to lunch.” And I thought “I do not want to go to lunch with them. I do not want to see either of them again.” I was injured, but I learned that was part of being an expert [. . .] The more confident you are in what you are doing [. . .] the better off you are. 

How Should New Experts Prepare for Deposition or Trial? 

While preparation is crucial to both new and experienced expert witnesses, newer experts have unique needs. Your approach to preparation will vary throughout your career. Attorney Stanley Gibson changes his approach to preparation depending on expert witness’ experience level: 

I think a mock examination is important, but if [expert witnesses] have testified hundreds of times, they do not need [it] as much [. . .] so you keep that to a minimum. New experts, especially on the technical side, will not have testifying experience. I think it is necessary to walk them through both direct and cross-examination. I will have an attorney at my firm play the other side and do the cross-examination for my expert. [. . .] You want to make sure they can defend their opinion and they understand the best ways to do that.  

One of the first growth opportunities for new experts is becoming comfortable with asking questions. Expert Jean Acevedo points out:  

[O]ne message which goes both for the attorneys and any new experts, is where the experts [. . .] ask questions. Don’t feel like “Oh. Maybe I should know this, I don’t want to ask. I don’t want to look silly, right?” There are no stupid questions, only ones that you haven’t asked [. . .] And for the attorneys, remember that you’re probably not working with [another] attorney, so making sure that your expert feels comfortable to actually ask you questions, and ask you about procedures and processes without making the expert feel silly [. . .] [Make] sure that you work collaboratively; you’re all working towards the same goal.  

Expert Witness Mentorship Matters 

Learning from the experience of other expert witnesses is a tried-and-true strategy for newer experts. Long-time expert witness Dan Arthur prepares other members of his firm:  

Over the years, I have had other individuals in the firm work as experts, and I will mentor them. I may be on the phone with them during their first calls. I will talk to the attorney and say, “He has not done this before.” One of our guys was getting ready to testify at a hearing [. . .] and he was nervous because he did not have my background; he had never done this before. I had to remind him of what he had done and what he could say being a certified expert on the stand. Yes, you do not have all these letters behind your name, but you have done a thousand of these in this area. You know what you are doing. Have confidence. The other thing I have done is get the guys before they testify to go watch another expert testify, that could be helpful. Watch what the attorneys do and the kind of questions they ask. 

Great mentors can leave a lasting impression, as Dr. Laura Miele recalls: 

It was scary in the beginning. It can be intimidating even though you’re an expert in your field. You have to also know the legalese [. . .] and understand what litigation involves, and it takes a lot of training and studying. I was very fortunate at the firm that I was with. We were trained quite well, and we did have mentors. [. . .] I had [a] mentor who has passed away now, but he’s still the voice in my head when it comes to depositions or trial [. . .] I was taught very well on how to conduct myself. 

Change is a Constant 

As an expert’s career progresses, the amount and formality of preparation needed may decline. Dr. Chuck Easttom notes:  

I have reached a point now where I had a trial recently where the attorney looked at me and said, “You know, you have been in more trials than I.” Generally, the preparation is less from attorneys these days. For my last eight or ten depositions, deposition preparation amounted to the lawyer talking to me for a half-hour and saying, “You feel good?” I said, “Yes.” That was it. Years ago, it used to be an all-day preparation mock cross-examination, but that does not occur anymore.

Not all change is internal; expert witnesses must be nimble and adapt to a shifting framework. Attorney Stephen Embry contrasts the traditional new expert witness coaching of not answering more than is asked, with a more modern approach, taking alternative resolutions into account:  

We [used to] try more cases and in some of the depositions you want to give less, not more information. But the way things work now with more cases being settled, with mediation being more a[common] [. . .], I tend to be freer than that, and there are things I want the expert to bring out in the deposition, even if it is not exactly asked [. . .] These days I am more liberal with that [. . .] you are sort of negotiating and getting ready for the settlement talks in the discovery, you want to make your points and score your points. 

New expert witnesses who receive mentoring, aren’t afraid to ask questions, and are willing to embrace change can quickly and comfortably navigate the growing pains associated with a new endeavor. As you progress, you will become more competent, efficient, and effective. 

For nearly 30 years, we have helped litigators locate, evaluate, and employ the best and most qualified expert witnesses, in all fields of specialties.  Make the most of your professional expertise by joining the Round Table Group Network. We can help you connect with the cases and law firms that need just the kind of experience and knowledge you offer. 

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