The following are steps in the development of Expert Witness Testimony. Not all of these steps are needed in every case. However, they should at least be considered:
- Preliminary review to determine whether to proceed.
- Document review.
- Questions for the client.
- Preliminary affidavit/declaration
- Supplemental affidavits/declarations.
- Adverse expert.
- Trial preparation and testimony.
1) Preliminary Review
I will need to talk either to the client or the attorney who is most knowledgeable about the case. I try to grasp the essence of the case in less than an hour. If I do not think I can help I will tell you and there will then be no charge for my time.
2) Document Review
At this early point, I don’t want to see everything or even almost everything. That could entail a great deal of unnecessary expense in having me read every piece of paper you send me. Rather, please assemble the smallest quantity of documents you can that still give me a good overview of the case. Do not omit the documents that hurt your case; the sooner we know where the problems are the better.
3) Questions from me
My review and cataloguing of the documents usually raises issues for me and I will therefore be asking questions. It is probably best for me to deal with only one lawyer or representative. With certain exceptions, it is better for me not to deal directly with the client, since EVERYTHING s/he tells me is discoverable if I am to testify.
4) Preliminary affidavit/declaration
I will draft a preliminary affidavit or declaration which usually takes the following form:
- My qualifications, who retained me and for what purpose
- Factual basis for the opinion: Based upon a limited number of documents, allegations and pleadings, depositions and discovery responses, if any (listed in Schedule 2) which I have not independently verified but which I assume are true and will be supported by admissible evidence, the facts are as follows:
I note that further review of materials may cause me to revise my opinions. Note, however, that I do not resolve inconsistencies or conflicts in the evidence; rather, I deal with both versions of the facts. - A discussion of whether the alleged conduct of the professional fell below the applicable standard of care or violated the Rules of Professional Conduct or both.
- A discussion of whether the conduct of the professional was the proximate cause of damage to the Plaintiff.
- A discussion of any Affirmative Defenses.
5) Preliminary Declaration
Before finalizing my Preliminary Declaration I may provide Counsel with a draft of the Opinion, with the proviso that the contents are preliminary and a further review of the facts may alter my opinions.
6) Consultation
I am available, if requested, to provide suggestions as to needed discovery, legal research to be performed, and an approach to the adverse expert witness(es).
7) Supplementary Declaration(s)
It is not necessary to keep me up-to date on all discovery or investigation during the course of the litigation. However, if there is something that Counsel believes may impact my opinion it is a good idea to provide the details to me and request a preliminary assessment of the impact of the newly learned information. From time to time, Counsel may wish me to supplement my Preliminary Declaration. I should definitely be given an opportunity to review the fruits of the relevant discovery and investigation and to revise my Preliminary Opinion before I am deposed. A supplement may also be appropriate in preparation for a Motion for Summary Judgment; however, I can provide an affidavit in support or opposition to a Motion for Summary Judgment without revising the report.
8) Deposition
Before I am deposed I will need Counsel to advise me of any information that I have not seen and give me an opportunity to review the opinion(s) of any adverse expert(s). I could review all of the pleadings and discovery in the case to date; however, that is only appropriate only in large cases because of the expense. On cross examination, if I don’t know the answer to a question I will tend to say, “I don’t know.” However, that does not mean that you should allow me to be surprised by some new revelation or that I cannot supplement my knowledge after the deposition and provide adverse counsel with a supplemental report.
9) Adverse Depositions
I am available to attend and/or assist in the preparation of deposition questions for adverse witnesses and experts
10) Trial Preparation and testimony
I will need to know about all of the new information disclosed and new theories advanced before the trial so that I can prepare for my testimony and Counsel and I can, together, determine whether any additional disclosures need to be made to counter new material.
This is not listing of the expert services I perform in every case. I am sensitive to the cost/benefit analysis and can work within whatever parameters Counsel may set. Simple cases may require only a substantially modified approach. While I am not happy about doing it, I have been known to prepare an opinion on a weeks’ notice. But don’t try it at home.
WHY YOU SHOULD RETAIN ME
You should hire me as an expert witness because I will:
I) Be mindful of the cost/benefit analysis in preparing my testimony and use associates and paralegals where possible and suggest less expensive ways to do things to keep the costs down.
II) Communicate and collaborate well with Counsel.
III) Digest complex factual matters and legal theories quickly.
IV) Write declarations and reports in “plain talk,” offering an incisive analysis even when dealing with complicated legal or factual issues.
V) Deliver reports and opinions promptly.
VI) Avoid resolving conflicting factual allegations (something an expert is not permitted to do). Rather, each version of the facts will be given weight and the opinion will be based upon the potential truth of either version.
VII) Ignore allegations that conflict with documentary evidence, are incoherent or that are otherwise simply not believable.
VIII) Resist unfounded hypothetical questions on cross examination and keep my answers to a minimum (unless provoked!).
IX) Anticipate and provide clear refutations of adverse expert testimony.
X) Work with Counsel to develop the case as s/he sees it (but nudge Counsel to consider other approaches when I think there is something worth considering.)