Preparing the Expert for Examinations

AuthorJohn Hollander
preparing the expert for examinations
chapter four
Preparing the Expert for
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
    
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:
preparing the expert for examinations
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.

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