Litigation - Kohn's Top Ten Rules for Preparing Your Expert for Testimony©

10/01/2000

Decide if you need an expert and on what subject. Consider whether the subject is within the ordinary knowledge and experience of a juror, and whether an expert would be helpful to the court and jury (usually helpful to you!).
 
Choose the right expert. Consult with persons in your firm or other law firms, research relevant publications and advertisements in legal journals, and conduct an internet search concerning who would be the right expert for your subject. Have a backup expert on the same subject. Distinguish between consulting and testifying experts.
 
Check out your expert. Go to the same sources your opponent will use to attack your expert. Use the Internet sources, talk to peers, and read the publications of your expert. Test your expert’s CV. Request and review prior testimony.
 
Question your expert. Ask about qualifications, publications, scientific validation of theories, and prior litigation experience, most significantly, whether she was ever disqualified by a court or agency or ever disciplined professionally.
 
Invite your client to meet the expert. Misunderstandings about the nature of and need for the anticipated testimony and misunderstandings regarding expected fees and expenses can be avoided by this step. Consider having your expert work in phases and bill monthly to avoid unexpected nasty surprises for the client.
 
Instruct your expert. All findings should be discussed orally before anything is written down, and care should be exercised regarding the destruction of superseded drafts. Once anything is written, it should be prepared in draft and finalized only after discussion with you. Caution your expert not to communicate with you via email. Your expert should let you know her expected fees and expenses for the work; she also should not conduct any work unless specifically authorized.
 
Provide full and complete information to your expert. She will need all documents about the entire case if possible, but certainly on the expert’s subject. Spend time talking to your expert about the case; she can help. Be careful, however, not to treat your testifying expert as a consulting expert.
 
Carefully frame the question. Consult with your expert about what the question to her should be and how professionals in her field would answer or analyze the question. Critical elements include underlying assumptions and the reliability of the analysis or methodology used to reach the conclusion.
 
Consider the admissibility standards. Every jurisdiction will have its rules on expert admissibility. Check these out in your jurisdiction and make certain that your expert can meet those, considering that establishing scientific reliability is the crucial element.
 
Practice the testimony with your expert both direct and cross.

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