Expert Witness Responsibilities and Key Attributes
Serving as an expert witness carries a heavy burden of responsibility. The expert plays a key role in any case and can be the pivot point between winning and losing the case. This blog explores the range of duties, attributes and responsibilities expected of an expert. These include:
- Credibility
- Excellent verbal and written communication skills
- Ability to listen and formulate logical responses and conclusions
- Adherence to work direction from the attorneys
- Technical expertise in the field
- Ability to be a “Chess Master” anticipating questions in deposition and trial
- Ability to absorb and sort a huge amount of information during discovery
- Ability to form a partnership with the law firm and client
- Ability to maintain composure during aggressive questioning
Each of the responsibilities and attributes will be explored including some case history examples.
- Credibility
The expert witness must have a range of skills that roll up to establish credibility; experience, communication skills, ability to withstand tough questioning and maintaining composure. Becht was involved in a case where the opposing expert maintained plastic piping had the same properties as metallic piping. The Becht expert brought in code examples that discredited the opposing expert.
Sometimes the “expert” is a “hired gun” willing to say anything to support their client. These “experts” are easily discredited. Becht maintains a high standard and will decline cases where we cannot support the desired position of the attorney or our testimony could damage the potential client.
- Excellent verbal and written communication skills
In addition to credibility, exceptional oral and written communication is critical to be a successful expert witness. The expert must be able to prepare well-written, clear, concise and convincing expert and rebuttal reports. Often times, we find the opposing experts are unable to clearly express thoughts in writing or the report is wrong. In one case the plaintiff’s heir claimed the person had been exposed to asbestos resulting in mesothelioma and death from working in our client’s plant. A complete analysis of the deceased person’s work timeline, including locations, duties and time of commissioning of the plant in question, we developed a complex matrix demonstrating the person could not have been exposed in that plant. In order to put this into a comprehensive affidavit, we had to carefully and accurately put this information in writing and then communicate the results to our legal team. As a result of this analysis and communication the case was resolved in our favor.
Oral communication is important in developing the case working with the attorneys and during deposition and trial. We have had cases where we had to make convincing arguments to the attorneys to set the strategy for the case.
- Ability to listen and formulate logical responses and conclusions
During deposition or trial and arbitration testimony, listening is critical. The opposing counsel will try to damage the expert’s credibility and find issues to challenge expert reports. It is important to be absolutely sure of facts in reports and testimony and not extrapolate beyond known facts. During one case regarding cost and timesheet discrepancies, the expert mistook a proposed holiday timesheet for the actual time sheet. Just a simple mistake like this can fluster the expert and put the expert on the defensive. It’s best to just stick to the facts.
- Adherence to work direction from the attorneys
Each case has its own rules set by the law firm and attorney. The expert must not violate these rules and there must not be any written communication, email or text without specific approval and direction from the attorney. This is because in some cases, all written communication and even notes taken, can be the subject of discovery by the opposing counsel. At best some notes could be embarrassing if they are overly critical or cynical and in the worst case used by the opposition to destroy credibility or disqualify the expert. Becht has worked on cases where every note and email are discoverable and other cases where communication with the legal team is open, confidential and protected work product. The expert must be sure to understand the rules up front before making a critical error.
- Technical expertise in the field
It goes without saying the expert witness must be an expert in the field where they will present testimony. We have worked with experts who have tremendous experience and have even written governing codes on key issues related to the case. Combining exceptional technical expertise along with the other key attributes in this blog is a winning situation. In a recent case involving a fire and explosion, by examination, we were able to see how a system could be over pressured causing the accident. However, an exceptional expert was able to turn this theory into fact through expert calculations and moved the argument from “it looks like this happened,” to “this did happen.”
- Ability to be a “Chess Master” anticipating questions in deposition and trial
During deposition and trial, opposing counsel will try to “checkmate’ the witness by asking a series of questions designed to set a trap to get the witness to contradict themselves or their report or ask leading questions fishing for a conclusion. The expert must have critical listening skills and never answer until he or she fully understands the question. In general, it is assumed if you answer, you understood the question. It is also important for the expert to not speculate during report prep or testimony. It is different to say “in my professional opinion” vs. “this is a fact” unless it can clearly be proven. It is difficult for the opposing counsel to challenge your professional opinion. However, if you state that something is fact it must be backed up.
- Ability to absorb a huge amount of information during discovery
Becht has worked on cases where the files reviewed totaled several gigabytes. This is obviously a huge amount of information where the review could be condensed or stretched over a few years. In either case, keeping this straight is a challenge. The key to success is to keep concise, factual notes. It’s easy to get lost in the weeds reviewing this amount of data.
- Ability to form a partnership with the law firm and client
This topic has been covered by some of my other blogs. In summary, it is very important a strong partnership be formed between the expert, law firm and client. We worked on one case where the attorney tried to control information and kept key facts from the experts. This led to confusion and significant cost as the expert team had to try to figure out what happened since facts were not being shared.
- Ability to maintain composure during aggressive questioning
Each opposing attorney has a different style when asking questions during deposition and trial. Some are straightforward and professional, some try to be your friend and others are intimidating bulldogs. The important point is their mission is to discredit you as an expert. In my experience, the bulldog is the least effective but can be unsettling if you are not prepared. It is important to remain composed, listen to the question, ask for clarification if not understood, take time to form your answer and respond. Some attorneys are looking to trap you with yes or no questions. I find it effective to answer and say “but that does not tell the whole story,” and continue.
These 9 items are just a few helpful hints when preparing an expert witness. Becht has extensive experience providing experts for the refining, petrochemical, nuclear and heavy lift industries. For more information please visit more on Becht.com or drop us a line by clicking below:
