Another challenge is that you are not simply given free rein to explain how you came to form your opinions in the case. You must be able to convince the fact-finder of your theories and opinions in the question-and-answer format utilized by the courts.
However, answering only what is asked of you may interfere with your ability to convey all of the information. Accordingly, preparing with the attorney beforehand is crucial to your success as an expert witness.
Proper preparation will prevent you from having to slip in important information when you were not directly asked the appropriate question, which most likely will draw an objection from the opposing party. It can be very beneficial to give your attorney an outline breaking down the most important aspects of your testimony with a few sample questions.
You will also want to consult with the attorney to ensure you understand from a legal perspective what your testimony is designed to prove and how it fits in with the rest of the case.
You should take the initiative to remain up to speed on the Case Management Order or Case Management Plan, which contains many of the applicable deadlines. Attorneys are not infallible, and it is certainly possible that they may forget to coordinate in a timely manner with you as to the various deadlines pertinent to your role in the case.
Familiarizing yourself with the court deadlines will ensure you are able to provide your attorney with all of the necessary information in a timely manner, and may also prevent you from being summarily disqualified as an expert because you did not afford the opposing party enough time to review your qualifications or report.
Testifying In Court And Surviving Cross Examination
By the time of hearing, you are in the home stretch, as most of the background work has been completed. At the appropriate time, your attorney will call you to the stand and will begin his direct examination based on the questions and answers you previously discussed.
Giving your prepared testimony should be fairly uneventful, as you will have had plenty of time to practice. However, there are times when the attorney may deviate from the questions he prepared for you based on something unexpected that has arisen in trial.
Usually, the most challenging and frustrating aspect of your testimony will come when the opposing party’s attorney has the opportunity to cross-examine you. This can be a very uncomfortable experience because the opposing attorney will often be adversarial as he or she tries to pick apart your testimony.
One area in which many retained experts are commonly uncomfortable being questioned is in regard to their fees. You should expect the other side to make your fees seem exorbitant or unwarranted in the case. Accordingly, do not feel offended or embarrassed by questions that appear to make what you charge seem outrageous. Your time as an expert is valuable and your fees are likewise necessary for you to provide an expert opinion in the case .
The attorney for the party who has retained you typically addresses the issue of your fees prior to your testimony or during his direct examination of you. You can usually rely on the attorney to let the court and/or jury know that your services were required to resolve an issue in dispute and that expert testimony fees are rarely inexpensive.
Another aspect of cross-examination that can be disquieting to expert witnesses is that the rules of evidence in most jurisdictions allow an expert to be asked hypothetical questions. You should be prepared to discuss how your conclusions might change when given other hypothetical sets of facts to consider.
An attorney experienced in cross-examination will also tend to ask only questions that allow for a yes or no answer, when the answer really requires a far deeper explanation. Do not be concerned if this occurs, as your attorney will generally be allowed the opportunity to redirect and ask you follow-up questions to clarify abbreviated answers you were forced to give during cross-examination.
The most important thing to remember is to keep a level head and to avoid letting the opposing counsel goad you into anger, as it could be their intention to distract you or the court from the true issues at hand.
By following courtroom procedure, meeting deadlines, thoroughly preparing your testimony individually and with your attorney, and remaining calm and collected while testifying, you can be a successful expert witness in the exciting field of litigation.
Joseph E. Cordell is the principal partner of Cordell & Cordell, a domestic litigation firm focused on representing men in divorce. Since co-founding the firm with his wife, Yvonne, in 1990, he and his team of almost 200 attorneys spread across 101 offices in 28 states have helped tens of thousands of men going through divorce.