The working relationship between the attorney and their expert witness in a case can be more effective if a few simple guidelines are followed. These are common sense things but one or more can be overlooked in the frequent day-to-day rush that busy attorneys face. When that happens some of the potential contributions from the expert may be compromised or lost to the detriment of the attorney's client.
Remembering the following, in no particular order, may help to take full advantage of the qualities that a good expert witness brings to litigation:
Early in the process, make sure the expert understands your specific approach or the basic arguments you plan to use. With this knowledge he or she can determine the areas in which they will start their detailed investigation. He may find the reported plan can be easily supported OR she may find that there is no or only a weak basis for the anticipated arguments. This is particularly important in the latter case because the attorney can then take advantage of the expert's knowledge to develop or research other avenues (where they exist) to help your client with a different approach.
To the extent possible, plan ahead as to what work you expect from the expert and what the scheduling will be. This includes not just the basic evaluation and development of their opinions but also what documents (and their approximate magnitude) will need to be reviewed and when, when will her expert report be due, when will depositions of opposing experts occur and when will his deposition and/or trial testimony occur. Of course much of this will not be known initially. However, just like attorneys, experts often work on multiple cases simultaneously so avoiding last minute surprises on tasks for your case will help him or her to plan and give you the best result possible.
Use your expert to closely critique the opposing expert's report and CV for your use in taking that expert's deposition or for their cross examination at trial. This is a major service that the qualified expert can offer. He or she likely will have similar technical credentials to the opposing expert and thus they should be well qualified to uncover the weak areas for you to exploit during questioning.
Use the expert so that she is always perceived by the judge and jury as completely objective. An effective expert is never viewed as an advocate for your case. Often this will mean that some aspects of the opposing case can and should be conceded by the expert - if they are true. These admissions often support the unbiased, trustworthy value of that expert. Of course a talented expert can assist your case by casting his truthful opinions in the most favorable light, e.g., "the glass of water is half full or it is half empty", are both truthful statements.
Define for the expert how their work on the case will interface with that of experts in other areas that you have retained. This is to increase the possibility that useful, complementary findings are generated, there is no duplication of efforts and there are no fundamental contradictions in the separate conclusions. This coordination is essential
Gerald O. Davis, PE, President and co-owner of DM&ME, has over 40 years experience in Materials Engineering and Business. Mr. Davis is a Forensic Expert in Materials Usage, Corrosion, Metallurgy, Mechanical Failure, & Root-Cause Failure Analysis. His recent background includes work as a corrosion researcher, senior engineer, and program manager for Battelle Memorial Institute, DNV, Inc., Henkels & McCoy, Inc., respectively and, since 2004, as president of DM&ME.
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