Trial Magazine

For expert witnesses to present well at trial, you need a cogent direct examination that flows smoothly and conveys complex information simply. But preparing an expert can cause conflict—you may want information communicated one way, while the expert may be more comfortable relating it differently. Forcing an expert to do things “your way” can create awkward disconnects between what you want the expert to say and the actual testimony.

For example, in a medical malpractice case, you want the expert to clearly undermine anticipated defenses regarding specific comorbidities. But the expert is medically trained to look at a person’s entire clinical condition, whether relevant to the case or not. He or she may start testifying about irrelevant health conditions that could confuse jurors. Here are a few ways to minimize this potentially disastrous problem.

A few weeks before trial, send the expert a list of the opinions you need in the order that you plan to offer them. Agreeing on the order is key so the expert is comfortable with how the information will be presented. Be receptive to your expert’s suggestions—after all, he or she is the one testifying and may have an idea that’s better than yours.

During trial prep, draft the direct examination with the expert present so he or she will know what to expect and will be ready to tell the jury why his or her opinions are credible. For example, in a pressure wound case, you might ask, “What education do you have that makes you knowledgeable about pressure wounds?” Do the same with training, work experience, and other qualifications.

Next, draft questions with the expert’s help based on the opinion outline. Simple, open-ended questions such as “What else did you find?” or “Why was that important?” will cue your expert to answer without leading or switching the order.

This process is, admittedly, a grind. It takes time, attention to detail, and—most important—flexibility. However, it usually ends with a confident expert and a direct that flows as seamlessly as two people talking at a coffee shop.

Michael Brusca is a shareholder at Stark & Stark in Lawrence­ville, N.J. He can be reached at mbrusca@stark-stark.com.