From the perspective of the expert witness, examination is not a particularly enjoyable process. The adversarial environment, intensity of focus, and technical nature of the data all combine to add stress to an already demanding situation. Experts themselves also may have some degree of self-doubt, a subliminal fear of being placed under scrutiny magnified by the inherent human tendency to avoid criticizing others. In the absence of a focused mind, even the staunchest expert may melt under the spotlight of skillful examination. Consequently, an astute litigator must understand the perspective of the expert and then reinforce the skills that will lead to the expert’s — and the case’s — success. Toward this end, a basic pep talk is a good place to begin.
Although you are a skilled litigator, your expert must start with the essentials. Define the differences between direct and cross-examination and explain that both are simply dialogues between the expert and the attorneys. Explain that when an examination occurs at deposition, it will take place at a law firm, an office, or another neutral location. When it occurs at trial, the expert will be in front of a judge and jury. Many experts view deposition as an informal dress rehearsal for trial, a mistaken perspective that downplays the significance of rigorous preparation and attention. The key is to understand that deposition is simply an extension of the courtroom and that testimony will be under oath and used in court. Consequently, instruct the expert to prepare for deposition and trial with equal intensity. Remind the expert that their behavior, mannerisms, physical appearance, and attire may directly or indirectly influence their perception as a credible expert and case asset. Since you are experienced in the techniques necessary to prevail at trial, build teamwork by asking the expert to listen carefully to your suggestions. Similarly, remind the physician that you respect his or her own critical strengths: the skill of speaking to people in stressful situations and the intelligence of being a learned expert. It is the combination of the litigator’s experience and the physician’s abilities that will increase the probability of success in any given case.
Take time to establish the expert’s role within the framework of the case. Remind the expert that he or she is an impartial commentator. His or her loyalty is to the court thus obligating the expert to render honest and unbiased opinions. The expert is neither the accuser nor is he or she responsible for the events that have transpired. The expert alone will not determine the destiny of either party. Rather, the expert will educate and inform the trier of fact in the anticipation that justice will prevail. While an expert should never advocate opinions with which he or she disagrees, the expert must skillfully articulate and defend the positions already professed. It is a responsibility not to be taken lightly. A compelling expert must exhibit resiliency in the face of tough questioning and remain steadfast in supporting the opinions that they offer. Remind the expert to rely on competent training and years of professional experience. Those strengths are the key to rendering deliberate and assured testimony based soundly upon the medical facts.
Work with the expert to hone confidence and build presentation skills. Time spent with a good pep talk — really a “prep-talk” — will be time well spent.