EFFECTIVE USE OF EXPERTS AT TRIAL
One of the most important weapons of any trial lawyer is a reputation of willingness to bring appropriate cases to trial. Of course, a lawyer must develop a reputation for handling cases in the courtroom with skill and ability. Your effective use of expert witnesses at trial is a fundamental part of this equation.
Effective Use of Experts on Direct Exam
An effective and smoothly crafted direct exam is tougher than it looks. Good execution first requires good preparation.
Preparation of Your Expert’s Trial Testimony
Contact your experts thirty to sixty days in advance of trial to make sure they have everything they need. By this time, they should have reviewed the deposition transcripts of the defense experts and any other remaining witnesses. Discuss this evidence to see how, if at all, such evidence affects their opinions. Be prepared to give them a thumbnail sketch of how you envision their direct exam.
This is also a good time to discuss trial exhibits. Rather than decide what exhibits to create, consult your expert. It is the expert that will educate the jury to your theories of liability. As such, they ought to have input as to the tools they will use to teach the jury.
As the trial date approaches, schedule a more intensive prep session or sessions where you ask your expert specific questions that they will get not only from you, but from defense counsel. Get them thinking about the theme of your case and the story you want to tell the jury. Their testimony is crucial to telling this story.
Just before trial and, in particular, the night before they are to testify, make a complete run through their direct exam and make sure they are familiar with the exhibits you intend to use. By this time, the expert should be able to anticipate where you are going with your questions. Similarly, you will have a better sense of what you need to do to more effectively navigate your expert through their direct. The result will be a smooth and polished direct exam. Obviously, do not forget to cover key points they are likely to face on cross examination.
Qualification of Your Expert Witness
Catastrophic cases often involve multiple experts on both sides. It does not take long for the jury to grow weary of the typical expert qualification. At some point, they no longer care if the expert has published 2 chapters, 53 peer-reviewed articles, and 87 abstracts. Expert qualification does not have to be so dry, however. We typically hand the expert his or her CV right after they state their name for the jury. After they identify it, we mark it as an exhibit and publish it to the jury. We make copies for each juror so they can see it for themselves. When you have a 50-page CV detailing all the expert’s accomplishments, the size of the CV alone tells the jury that they are listening to a well-credentialed authority on the subject matter. If the CV is relatively thin, we may spend a bit more time talking about how they do not have time to research and publish because, for example, they are too busy taking care of patients just like the plaintiff on a day-to-day basis.
Then, briefly hit the basic foundational requirements in terms of their education, training, etc. You are now at the point where a little creativity can go a long way. Let’s say your aviation expert started out as an aerospace engineer with NASA. You might introduce a photo of your expert taken with astronauts during his tenure at the Kennedy Space Center in Cape Canaveral. In a medical malpractice case tried by my former firm involving a birth injury, one of our experts was a specialist in maternal-fetal medicine. He has an amazing image of a near-term fetus grasping the expert’s finger while in the womb which was showed to the jury. Thus, they were able to use visual means to demonstrate the expert’s background and skill. These types of exhibits help demonstrate the training and ability of your experts in a memorable and impressive way. But more importantly, they personalize the experts for the jury.
Effective Use of Exhibits with Your Experts
Whether you elect to project records on a screen, create boards or use some other means to present your exhibits, do so in a way that keeps the subject matter simple and the jury engaged. This is easier said than done. However, with some thought, you can come up with creative exhibits, and creative ways to present those exhibits, above and beyond the necessary photos of the accident scene, medical records, etc. This is where the pre-trial consultation with your expert comes into play.
For example, in a case we tried involving a pacemaker lead extraction, the cardiologist gained entry into the vein and used a dilator sheath which he advanced to the location where the end of the pacemaker wire (the “lead”) was attached to the heart. He then inserted an electrosurgical device through the dilator whereupon he attempted to dissect the lead away from the heart. As he attempted to pull the lead out of her vein, the vein ripped and the patient ultimately died. Wondering how I was going to explain this to the jury in terms they could understand, my expert told me to get him a Slinky. On the stand, he explained how the slinky was the dilator. He stuck his arm (the electrosurgical dissection device) through the Slinky and explained how leads were extracted. Simple, but effective. And the jury got a kick out of the Slinky.
In the birth injury case involving the maternal-fetal medicine expert described above, a key piece of evidence was the fetal monitoring strip which was very concerning. It used to be that we would have to put these strips on a lot of boards to give the jury a picture of what was going on. After consulting with an exhibit company, we learned that they were beginning to digitize strips. They would take the actual strips, and create a program which would allow us to scroll through the entire strip on our computer, which we then projected on a big screen. It was so novel at the time, our expert, who was and is a Professor in his field, said he had never seen anything like it, but would begin to use that technology immediately in his own teaching. Then, in front of the jury, the expert effectively scrolled through the strip in expeditious fashion. He showed them what the early stages of labor looked like and how healthy contraction patterns appeared. The “healthy” strips were in stark contrast to the ominous signs depicted on the strip closer to delivery.
The bottom line is to think of exhibits that will afford your expert the chance to effectively communicate and connect with the jury. The exhibit may be as rudimentary as a Slinky, or as technologically advanced as a digitized fetal monitoring strip.
Preparation of Your Experts for Cross-Examination
As noted above, it is important to prepare your experts for cross-examination just as you do for direct examination. Work with them on how they intend to answer tough questions. Work on their phraseology. Remember, a glass that is half full is also half empty. But the first description sounds better than the other. Remind them to remind the jury of your theme when the appropriate moment arises.
My next post will discuss the use of damages experts in the litigation process.