Preparing the Expert for Examinations

• Author: John Hollander
• Pages: 125-164

preparing the expert for examinations

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chapter four

Preparing the Expert for

Examinations

How to Prepare the Expert

   with preparation. Preparation is

usually what distinguishes a successful trial lawyer from

those who are unsuccessful. At trial, most of what occurs

involves witnesses. So, lawyers prepare themselves; they

prepare their clients; they prepare their witnesses; and

then they prepare some more.

Lawyers can prepare their experts to testify. ey should

be aware of the ne line between preparation and coach-

ing. Coaching is both unethical and bad practice. A well-

coached witness will say what the script provides. Both trial

judges and juries are uncomfortable with a witness who

testies to a script, especially when the script breaks down

during cross-examination. Preparation allows witnesses the

condence to express their opinions. So long as experts

stick to what they did or thought, they should do well.

Preparation involves several issues. e overriding prin-

ciple that governs the preparation of experts is that lawyers

should treat them with the respect due to another profes-

sional; after all, the lawyer and the expert form a team. e

success of their teamwork depends upon preparation, and

    

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preparation starts with the rst meeting. ere is no easy

formula to lay out the best way for the teammates to come

together. Even so, this chapter introduces the template —

the subjects that must be canvassed. The chapters that

follow will cover the essential elements in greater detail.

is handbook sticks to dealing with experts, but there

are several tips and techniques with respect to preparing

to examine witnesses that are laid out in Examinations in

Civil Trials, also in the Young Advocates Series. e gener-

al techniques set out there also apply to experts. Much de-

pends upon the experience of the lawyer and of the expert.

Indeed, they may have worked together in the past. If so,

much depends upon the past relationship between those

two players. It is not necessary for them to cover ground

that has already been covered.

Here are the primary goals that the lawyer wants to

achieve during the preparation of the expert witness:

• e lawyer needs the expert to perform well at trial,

especially when establishing the key points that led

to the retainer in the rst place. erefore, the pri-

mary goal is arming the expert to testify.

• e lawyer needs help to lead the expert through the

direct examination. What does the expert need for

the lawyer to direct the examination? Figuring this

out requires teamwork.

• e lawyer should prepare the expert for cross- exam-

ination. e expert may know the areas where the

witness’s opinion may be attacked. e lawyer should

1 John Hollander, Examinations in Civil Trials: The Formula for

Success (Toronto: Irwin Law, 2015), online: www.irwinlaw.com/

titles/examinations-civil-trials.

preparing the expert for examinations

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help the witness support the opinion in the face of

such attacks.

• e lawyer wants to cross-examine the opposing ex-

perts. Usually, experts know the subject better than

the lawyers. e lawyer should solicit the assistance

of the expert to deal with the opposition’s expert.

• e lawyer may want the expert to help with case

analysis and trial strategy.

With all of these objectives, how should the lawyer proceed?

The Key Questions

In direct examination, the lawyer will (eectively) ask

these questions:

• : What makes you an expert? is is the

voir dire. e lawyer leads the witness through his

or her education, training, and experience. After

this, the witness is qualied as an expert in a stated

eld by the trial judge.

• : How did you come to be retained in

this case?

» What instructions did you receive?

» What investigations were you asked to perform?

•     is is the short form or

executive summary of the opinion. For example, “I

am of the opinion that the speed of the car was

greater than was safe for the circumstances.”

•      is is the long form —

why the expert holds that opinion. During this set

of questions, the lawyer may solicit the reasons why

the opinion is preferable to the opposition’s opinion.