Erin Quinn-Kong* – As trial nears, your expert witness has likely already turned in an expert report and been deposed, giving you a glimpse at their style. But since they are such an integral part of your case, there is still plenty of prep work to do.
“Trial is all about telling a compelling story, so the expert has to be part of that story,” says Jay Levine, (pictured below) a partner at the law firm Porter Wright Morris & Arthur LLP in Washington, DC.
“They have to incorporate facts and remind the jury of your good evidence — their testimony provides the final punch.”
Here are five tips to make that final punch even more impactful.
Keep open communication.
Since your expert is not involved in the day-to-day of a case, it’s crucial to keep them in the loop on any developments and make sure they review all appropriate documents and filings on both sides. Give them continual updates on the case so they’re not surprised by any last-minute information. This helps them feel more involved and helps to bolster their testimony.
Understand your expert.
“I’ve seen too many cases where it’s a Q&A between the lawyer and the expert, but you get the sense that the expert is leading the lawyer, instead of the other way around,” says Levine. A litigator must not only have a full grasp on an expert witness’s testimony but be able to sum up the information for the jury and know the best follow-up questions to ask.
Expert witnesses often must educate lawyers on esoteric aspects of their professions. Levine also recommends working with the witness to make sure their testimony is broken into short, digestible segments. “If you let them go on for five minutes uninterrupted, it becomes a lecture,” he says.
Create a mock jury.
A focus group can help prep your witness while also revealing how the jury will respond to him or her. Levine recommends hiring a jury consultant to put together a pool of people in the city or town where the trial will take place. “You want it to be as close to the actual thing as possible,” he says.
If the expert can’t do an in-person mock trial, he or she can practice giving their testimony via Skype. The goal is to see how the mock jurors react to your expert and what they understand about the expert testimony and what they don’t. All that information will help you craft your strategy for the case.
Suss out any negatives.
A mock jury can also reveal if the expert comes off as arrogant, overly technical or unbelievable.
“If that happens, you need to work with the expert on their presentation, kind of like media training,” says Levine. Lawyers can also use the mock jury to see how potential jurors will react to any negatives in an expert’s past, such as scandal. “You can even do two focus group, one where you reveal the scandal and one where the opposing counsel does to see how each would go,” says Levine.
It’s crucial that your expert witness can explain a complex topic in terms that a lay person will understand. To work on this, Levine will often walk an expert through a practice testimony in front of people who know nothing about the case, such as support staff at his office.
After running through multiple practice rounds and a mock trial, your expert should have a good sense of what to expect when he or she takes the stand. “There are usually very few surprises at the actual trial in a high-stakes litigation,” says Levine. “Each side knows what the other side has.”
While the amount of time it takes to prep your expert witness has many variables — including their experience as a witness, the length and complexity of their testimony, and whether you’ve worked together before — expect to spend a lot of time with your expert, especially if they are crucial to your case.
As Levine concludes, “The investment is worth it.”
Erin Quinn-Kong is the former editor-in-chief of Austin Monthly and was previously an editor at Allure and Us Weekly. She writes for GLG, the platform that connects professionals with insight, and has written for a number of publications, including The Alcade, OpenTable.com and Women’s Day. When she’s not telling other people’s stories, you can find her exploring Austin, Texas, with her husband and two young children.