How to Prepare an Expert Witness for Trial
Working with an expert witness is a nuanced process. From search and retention to consultation and trial, there is no one way to ensure a smooth collaboration and successful outcome. However, some attorneys have really honed and refined this process. Recently, we spoke with Brian Weinthal, who is one of the world’s leading experts on using experts in the trial context. We were lucky enough to have him as a guest on our podcast, where we spoke about this very topic.
Brian talks about the importance of using an expert and elaborates, “In terms of maximizing your use of an expert and getting best out of your expert, what I find critical to do is make sure the expert knows their part in the story that you are telling. I think a lot of people retain experts and say Mr. Expert here you go. Here are the documents I would like you to review and I would like you to come up with their opinion on X.”
It is important for attorneys to move beyond this fundamental level of collaboration, and help experts see the forest for the trees. Brian sheds a light on this issue, “I think rather than just silo the expert or give the expert the chance to look at a limited number of documents in the case. You have to tell your expert what is the story that we are telling here. They need to know like anybody else, what part they are playing. If the expert knows what it is, you are relying on them to do their part of this tale that you are telling the jury, they are going to be far more effective in terms of communicating what it is that they are trying to get to the bottom of. Not only that, but they are also going to be more persuasive because they know what it is that you are trying to do with what its they are giving.”
One of the common mistakes that Brian sees among litigators is the exclusion of experts from other parts of the process. Attorneys should be looping experts in as often as possible, and not only speak with them when new reports are ready for review.
He states, “We cannot silo them and put them in a vacuum like that. The new federal rules give more freedom for attorneys to speak and converse with experts then when I started doing this with you. There is more freedom for attorneys to communicate with experts about theory and about what their actual views of a case are. If you are not maximizing your time with an expert, to explain to them their role, you are just letting the best opportunity to sell a persuasive part of your case go by.”
Disputes are a narrative that plays out over time, and within this narrative the expert is playing a critical role. To perform the role successfully, they need context. Brian explains, “The biggest crime that lawyers commit in their practices is getting so involved in their cases that they cannot explain it to somebody who has not been living and breathing it for any period. If you cannot break down your story into something that a child could understand, you are going to go over the heads of the people that do not have the backing and do not do it day to day.”
There are ways to prepare for this, and Brian takes an interesting yet effective approach. He says, “I am not embarrassed to admit that I will oftentimes ask either my young cousins or their friends to try a theory out on them and explain it, because if I can communicate it in a way that makes sense to them, I know that II will have no problem communicating it to a group of adults that do not have the backing in law or this theory.” The goal is to make it interesting and simple to understand upon first encounter.
For more than 25 years, Round Table Group has helped litigators locate, evaluate, and employ the best and most qualified expert witnesses. Round Table Group is a great complement to any litigator’s quest for an expert witness and our search is always free of charge. Contact us at 202-908-4500 for more information or start your expert search now.