In most cases, we are working for one side or the other in a case. In that event, legal counsel for the side of the case for which we are serving as the expert works with us to ensure we are properly prepared for trial, focusing on our direct testimony. In some situations, we are experts appointed by the court. In these cases we have to prepare ourselves for testimony.
In my experience, jury trials are more interesting than bench trials. Juries are usually composed of ordinary citizens who take their civic duty seriously and want to do a good job. Most jurors are not knowledgeable about the technical expertise we bring to the courtroom but I have found them anxious to learn. It becomes our responsibility to educate the members of the jury. This can be challenging, but when we are successful, it is an extremely rewarding experience. In bench trials, many times we are before long-term judges who have heard it all and allow the attorneys greater latitude. This makes for a more difficult cross-examination. By contrast, in a jury trial, an aggressive cross-examination runs the risk of having the jury feel that the attorney is badgering the expert and the jury views the attorney’s case negatively because of it.
Here are some tips for before and during the trial that may help you prepare and be the effective witness you want to be and that counsel on your side wants you to be.
When listening to counsel on your side describing the facts and circumstances of the case, remember that counsel is an advocate for his client and may not be giving you a completely objective view of the facts and circumstances. When you conduct your site visit, carefully compare the facts you learn there with the description given to you by counsel. Most of the time, the differences will become self-evident.
When gathering the client’s forecast and assumptions needed to prepare a discounted future cash flows approach, re- view these assumptions critically. Clients may tend to become very optimistic (or pessimistic), especially when noting the impact their optimism (or pessimism) may have on the damage or valuation computation. It is up to the expert to review the assumptions and limiting conditions to ensure that they are reasonable. Here is an example. I was retained to calculate damages in a case where an engineering firm was retained to provide expertise in designing a hydraulic system for a startup product. Their design and system did not work. The subject company provided us with a five-year forecast showing revenues of $100K, $250K, $500K, $5 million, and $600 million. This was a small startup company building its product in the owner’s garage. In my opinion, there was no way for this company to achieve sales of $600 million within five years. So we called legal counsel and the client, and we explained the need to provide a forecast that was reasonable and achievable. If we could not do this, it was possible that the judge would throw our damages estimate out. The client reevaluated its assumptions, and we produced a forecast and an estimate of damages that provided the basis for settlement.
Another important consideration when making the site visit is to obtain an accurate description of the subject company’s work. This is particularly important in dealing with professional practices. For example, a cardiologist and a thoracic surgeon may deal with the same area of the body but their work and professional results may be much different. Similarly, a general surgeon and a Mohs surgeon may both be surgeons but their work is quite different and their financial results will be quite different. It is crucial that the expert know and understand the professional services being provided by the subject entity.
Always, always, always tell the truth to the best of your knowledge and belief. Remember that you are an advocate for your opinion, not for the client. It is the attorney’s job to be an advocate for the client. Trying to shade your opinion to benefit your client’s side will almost always result in damage to the credibility of your testimony.
When giving testimony, face the trier of fact. This means speaking to the judge or to the jury or to the arbitrator or media- tor. You are there to assist the trier of fact in determining a fair outcome. Speaking directly to the trier of fact enhances your credibility.
Remain cool during cross-examination. Assume that the opposing attorney will not ask you any question for which he or she does not already know the answer. So answer the questions honestly and not in an argumentative manner. Remember, regardless of how well prepared you are, you will not win every single point. Plus, the attorney on your side has the opportunity to remediate any damage on redirect. Very little will be gained by getting into an argument with opposing counsel. Having said that, opposing counsel will try to get you to agree with him or her on various points then try to draw a conclusion with which you do not agree. If you do not agree, say so and ask if you can explain. Opposing counsel likely will not let you explain but on redirect, your counsel will give you the op- portunity to explain so your explanation will get to the trier of fact.
Never underestimate the other side. Most attorneys are bright and intelligent and have carefully prepared their case using qualified experts. So to the extent possible, know the strengths and weaknesses of your case. This may help you prepare for the areas in which cross-examination might be focused.
Lastly, be prepared for the unthinkable to happen. Here is an example. I was involved in a case with an outstanding trial at- torney and had prepared a detailed report. We had prepared large blow ups of several report schedules to present to the jury. Right before my direct testimony began, counsel for the other side re- quested a sidebar with the judge. For a combination of reasons and unknown to me, the attorneys agreed that neither of the experts’ reports would be allowed into evidence, only their testimony. As my direct testimony began, I expected counsel for our client’s side to pull out the first of the report schedules for presentation to the jury. Instead, with a smile, he pulled out an easel with a blank sheet of paper and together, as part of my direct testimony, we reconstructed each of those important schedules for the jury. I did not know the reason for the change until after my testimony was over, but at the time I understood that there was some reason for the change and with confidence in the attorney for our client’s side, I went with the flow and we were able to get the important information into evidence.
For relatively inexperienced experts who haven’t yet given a lot of trial testimony, I urge you to find a few experienced practitioners to whom you can ask questions and get the benefit of their experience. They will share with you some of the good and not-so-good things that have happened to them on the witness stand. Take their guidance to heart and you will be better prepared to withstand the rigors of trial testimony.