Common Mistakes Attorneys Make When Using Expert Witnesses
Expert testimony can make or break your case. A reliable expert can help you track down valuable evidence, advise on how to interpret evidence you do locate, and convince a judge or jury that your side of the dispute has merit. An expert opinion, however, is only as good as the legal work around it. A mistake at any point along the process of finding, hiring, preparing, or utilizing an expert in court can significantly undermine the value of their expertise as well as your case. Read on for a discussion of common mistakes lawyers make when working with expert witnesses, and call a qualified medical expert for assistance in litigation.
Using the Same Expert Every Time
When you find a reliable expert, it’s tempting to call on them time and again. You know you can trust them, and you know they are well qualified. Unfortunately, that can also backfire. A savvy cross-examination revealing that your expert has worked for you on several cases can significantly undermine your expert’s credibility, making them seem more like your own personal hired gun. To avoid the appearance of impartiality, it’s important to cycle through new experts rather than constantly relying on the same one.
Failing to Conduct Due Diligence on the Expert
Once you find an expert witness who is educated, experienced, and well-qualified to testify about your subject matter, it’s easy to stop the search and move on with preparing them for their opinion. However, it’s vital that you conduct full due diligence. Search through their publications, prior opinions, and prior testimony. You do not want to be surprised during cross-examination when opposing counsel asks them why an article they wrote 15 years ago directly contradicts the opinion they are offering in the instant case.
You may also simply need to prepare a reasonable response to any perceived weaknesses or potential attacks on their credibility. For example, if your expert has testified in dozens of medical malpractice cases and, without fail, always defends the physician, opposing counsel may try to present them as a shill for hospitals. Make sure to consider whether that is a fatal weakness to their testimony and, if not, prepare an effective response.
Under-Preparing Your Expert
Regardless of how well-qualified your expert may be, they need to be properly prepared. They need the relevant facts of your case, they need the right evidence, and they need to have a frank discussion about the strengths and weaknesses of your case. Remember: Your witness is an expert in their specific field, not in the law. It’s easy for them to inadvertently say something during testimony or in their opinion that supports the specific argument they are advancing but harms some other part of your case.
This also means that you cannot cherry-pick which facts and evidence to share with your expert. If there is evidence that undermines your argument, your expert needs to know so that they can account for that evidence in their opinion. Hiding bad facts or harmful information will only serve to undermine their credibility when it is unearthed during the trial.
Failing to Prepare for Testimony and Cross
If your expert is going to take the stand, it’s even more important to adequately prepare. Walk them through the testimony and opinion they will be advancing during direct examination, and make sure to do practice cross-examination exercises. Even the most brilliant scientist can see their credibility diminished under the withering questions of a skilled attorney. Make sure you practice crossing them about actual, perceived, and even fabricated weaknesses in their opinion or other aspects of your case that may arise.
If you need a knowledgeable, experienced, and thorough expert witness in a personal injury, medical malpractice, or product liability case, contact the offices of Neurosurgery Medlegal Services, LLC, at 866-659-8051.
