Most attorneys understand the importance of thoroughly preparing those who will present expert testimony at trial. According to the American Bar Association, experts are generally confident in their expertise and knowledge of the subject matter, and often resist preparation. Regardless of the expert’s credentials, they can undermine any opinions by getting the fundamental facts of the case wrong. Trial lawyers who want to learn more about how to prepare your damages expert for trial may want to consider visiting with Tania Williams at The Skilled Advocate Company at 561-293-8510.
How Damages Witnesses Differ from Expert Witnesses
According to the American Association for Justice, damages experts differ from expert witnesses due to the fact they frequently testify about things that are very personal regarding the plaintiff. A damage expert may testify about how the plaintiff’s self-confidence has been affected, the pain they suffer on a daily basis, or how the injury has affected their ability to participate in family activities. The testimony of a damages expert is personal in nature, which is why the best damages witnesses are those who knew the plaintiff prior to the incident that resulted in physical or emotional injury.
Tips for Preparing Your Damages Expert
Even when a damages expert is a seasoned professional, thorough preparation is key to a victory in the courtroom. Thorough preparation requires substantial time, so it is important never to take shortcuts. It is always best to over prepare by quizzing on the underlying facts of the case and testing the damages expert’s level of preparedness. The result will be greater credibility with the jury and judge, and hopefully a win for the trial lawyer and client. Here are key tips on how to prepare your damages expert for trial:
Identify Experts During Jury Selection
It is important that the damages expert and trial lawyer be aware of experts within the jury, as those with specific expertise or knowledge may not agree with the testimony of the damages expert. For instance, medical professionals such as physicians or nurses will be knowledgeable regarding various types of injuries, their treatment, healing, and more. Their expertise may not align with that of the damages expert, and they may share their disagreements and argue the testimony with other jurors during deliberations. This can be extremely problematic and have a huge impact on the outcome of the case.
Prepare, Prepare, Prepare
You can never be too prepared when it comes to expert testimony in an injury case. A damages expert should have a strong command of the facts, review documents, have a good memory of the facts, and the ability to imagine questions they may be asked under cross examination and how they would answer. Take the damages expert through direct examination and the anticipated cross examination as many times as it takes to feel confident in the courtroom. Query why certain assumptions were used by the expert. Those interested in learning about trial advocacy programs and boot camps may want to reach out to Tania Williams, trial lawyer and National Institute of Trial Advocacy (NITA) faculty member.
Keep Responses to Direct Examination Brief
The damages expert should give brief, to-the-point answers to questions posed on direct examination. A rambling expert witness does nothing to build their own credibility when they bury a key opinion beneath a sea of meaningless narrative. When it comes to direct examination, communicate to your damages expert that answers given must be strictly responsive.
Maintaining Jurors’ Attention
An expert witness must be capable of keeping the jury’s attention which is key to the testimony’s persuasiveness. Prepare the damages expert to:
- Provide answers that are informative, fully responsive, and in direct response to the question while staying on point
- Respond using terms that jurors can easily understand
- Maintain the attention of the jury by responding fluently to questions that direct the expert on occasion to new data or exhibits
- Speak in a manner that is calm, authoritative, and confident
- Speak to the jury directly on occasion while making eye contact
The ultimate goal of the damages expert is to use common language to educate the jury on the reasons why the expert’s opinions are solidly supported by the evidence presented in a way that portrays confidence, trustworthiness, knowledge, and amicability.
Concede to Errors
Damages experts are human, which means they are not correct 100% of the time. When an attorney who is cross examining the damages expert makes a point that is obvious and underscores the error made by the expert witness, it is never a good idea to argue the point. Jurors and judges are very aware when a damages expert is squirming and unwilling to admit their error – the anxiety is palpable. The less emphasis placed on the error, the better for your case. A damages expert who will concede legitimate errors is far more credible in the eyes and minds of jurors. Prepare the expert witness to move forward in a calm, seamless manner that will not highlight the obvious point or error further.
Avoid Fighting or Combativeness
A damages expert witness should never become combative or defensive when being cross examined. In many cases expert witnesses get involved in power struggles when being cross examined by the opposing counsel. Remind the damages expert that the most important audience is the jury, and that arrogance or testiness will only score points for the questioning lawyer. Expert witnesses often get harassed by opposing counsel. It is your job to make certain that the damages expert understands you, as the trial lawyer, will handle any harassment or objectionable questioning. An expert witness who remains composed when under pressure portrays professionalism and confidence.
Consider Contacting The Skilled Advocate Company
It is essential for all expert witnesses to be thoroughly prepared for trial, as their in-depth knowledge of the subject and testimony can make or break a case. Trial lawyers who are interested in learning more about how to prepare your damages expert for trial may want to consider contacting Tania Williams of The Skilled Advocate Company at 561-293-8510.