To educate your expert witness about various questioning techniques that are often applied by opposing counsel is critical to avoid confusion or damage to your expert witness’s credibility. For that reason, attorneys should help their expert witnesses to be prepared to render testimony in an proficient manner because working directly with your experts help them to feel familiar with the process; so this way, the expert may be able to control the situation and render their testimony in the most clear and persuasive way.
Expert Witness’s Preparation “Critical” for Deposition or Trial.
Frequently, an expert witness will be confronting very difficult or technical questions because sometimes the examining attorney will present hypothetical facts and complexity within a question.
If such a question is confusing, the expert can simply respond, “I do not understand the question” and request the questioning attorney to rephrase the entire question. It may give the expert witness some time to think about the question; and thus, a better opportunity to be persuasive with the answer.
When confronting with ambiguous questions, experts have to make sure they understand what the questioning attorney means by his words; otherwise, the questioning attorney has to explain the ambiguous question. By the same token, experts dealing with rapid-fire questions may be able to control it by taking their time to answer it, also giving his attorney time to object.
Additionally, preparation of an expert witness for deposition testimony significantly differs from preparation for testifying at trial. The objective of the expert witness at trial is to persuade the jury. On the other hand, for a deposition, the objective is to avoid prior inconsistent testimony and to show to the opposing attorney the weight of the expert witness’s testimony.
In trials or depositions, the expert witnesses are at some point teachers since their goal is to help to understand the technical or complex matter at issue by instructing, informing and illustrating with their specialized knowledge. So, it is not easy for these experts to abstain from offering additional information that has not been asked. Thus, expert witnesses should not help the opposing attorney that is a loss for words by offering any further information. If a questioning attorney does not get the science right or misses the point, do not educate them until the right time to inform them on direct.
In addition, an expert witness cannot guess at the answer. If they do not know, remember, or the answer is an estimate or approximation; the expert should say it instead of guessing at the answer as it will stay forever on the record. Expert witnesses must know their business very well and the specific limits of their specialized knowledge or experience to recognize a question that is outside their experience since the opposing attorney may try to trick an expert to answer a question that is outside his/her experience. Experts have to stick to their expert reports when asked about a subject for which the expert is knowledgeable but it is outside of the scope of his/her retention; and thus, it should not be considered. If an expert has been asked more than one question within a question, it is not permissible, so the expert should ask for the question to be repeated or clarified just to make sure to respond one right question.
Therefore, expert witnesses must be prepared substantively by their attorneys focusing on the experts’ communication skills and be prepared to questioning the expert on crucial areas appropriate to the case: direct, cross, or adverse testimony. Any data or visuals to be used by the expert should be available for the expert’s preparation.
