Every lawyer who has considered hiring an Expert witness understands the importance of expert witness testimony at trial. When searching for and vetting experts, an attorney knows that in many cases, their selection of experts may win or lose the case. As such, lawyers look for experts who are able to communicate complicated issues in a manner lay people can understand, know how to teach rather than lecture, and dress like a professional rather than the nutty professor when testifying.
However, the right expert, used in the right manner, can actually help lawyers win their cases even before jury selection begins.
1) A Good Expert Makes You a More Competent Lawyer
Is it “blood spatter” or “blood splatter”? “Spalling of concrete” or “Spaulding of concrete”? Is loci pronounced with a soft “c” or a hard “c”? While knowing the correct words and pronunciations may not make you look like a rock star, failing to appreciate that saying “blood splatter” makes you look like an amateur is, well, amateurish. A good expert makes you a better lawyer by making sure you don’t look unprepared.
It’s not just proper jargon and pronunciation that an expert can help with, however. An expert can explain to a lawyer how the science works and doesn’t work. They are available for lawyers to bounce theories off of to learn what may or may not be feasible.
In a criminal case, where a defendant has described a certain series of events, having an expert provides a defense attorney with the ability to privately consult with someone before taking their client’s explanation of events before a jury. The government will no doubt have an expert. It is probably a good idea for the defense to have an expert as well.
2) Information from Experts Can Inform the Evaluation of Offers
If, after consulting with an expert, an attorney finds their theory of the case doesn’t quite square with the science, this is valuable information. Many lay people may believe one can buy an expert’s opinion. Most attorneys, of course, know this is not the case. However, many do not appreciate the value of an early expert opinion that doesn’t square with their theory – or worse, agrees with the theory of the experts for the other side.
This information, too, can inform the lawyer and help the client “win” before trial. Understanding the weaknesses of one’s own case can provide the lawyer and the client feedback on the wisdom of taking an extended offer. For example, in a criminal case, an offer to plead to a lesser included offense, while still resulting in some prison time, may become much more attractive if the retained expert informs the attorney that the victim’s severe head injury and several broken bones couldn’t have occurred in the manner the defendant describes.
Similarly, in a civil case where a defendant’s expert agrees that a product sold over the counter for years does, in fact, have cancer causing properties may compel a defense team to extend an offer quickly, rather than risk publicity and a larger verdict at trial.
3) A Knowledgeable Expert Tells You Where the Bodies are Buried
Even if an expert explains they do not take issue with the other side’s conclusions, an expert can be of great help in providing information as a consulting expert. This information may assist in negotiating a settlement. An expert may take issue with the other side’s expert with regard to their education, training, experience, or other qualifications, for example. Alternatively, your expert may be able to identify short cuts the other side’s expert took in coming to their conclusion.
Most scientific fields have clearly defined best practices. If the other side’s expert failed to follow those best practices, or failed to consider alternate theories, your expert can provide you with detail as to how and when these failures took place. This can give you a leg up when crossing their expert during depositions. By using your consulting expert to assist you in exposing flaws in the other expert’s approach, you may lead the other side to consider extending an offer that is more favorable to your client.
4) An Expert Who Writes Well Creates a Report Worth More Than its Weight in Gold
Consulting experts can provide information to an attorney to assist in picking apart the other side’s expert without ever having to disclose their agreement with the ultimate conclusions of the expert. However, when an expert does not agree with the conclusions drawn by experts for the other side or the position of the opposing party, and the attorney intends to call them as a witness at trial, a report is required.
A well-written report is worth more than its weight in gold. An attorney can win before trial by providing the other side with an expert report that includes:
- A clearly understood opinion on the issue at hand
- The data relied upon to come to the conclusions drawn
- An explanation of the science that supports the conclusion
- Exhibits that support the conclusions (including exhibits created by the expert based on the discovery provided, such as photos, medical reports, investigative reports, depositions from other witnesses and the like
- A discussion of why the other side’s expert is wrong (where the other side’s opinion has been disclosed)
- A detailed list of impeccable credentials
An expert opinion supporting your case is helpful. An expert opinion that clearly explains to the other side’s attorneys why their expert is wrong, why their theory of the case doesn’t hold water, or why your expert’s opinion is superior is nearly priceless.
A well-written report, when read, should convey the competence of the expert, the ability of the expert to address the issue in a manner easily understood by the lay person of the jury, and the flaws in the other side’s position. This should lead the other side to reevaluate their position. No one expects the other side to simply throw up their hands and withdraw their suit or, in the case of a criminal defendant, enter a plea of guilty to the top count. However, it should open the door to more favorable settlement negotiations.
What Is “Winning” Anyway?
Even with the best experts, not all cases settle. In fact, in some cases, settlement may not be an option for a variety of reasons personal to the parties involved. However, in many cases, the usefulness of an expert extends well beyond testifying in the courtroom.
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