Litigating with expert witnesses: Five steps to success
“Experts” is a topic covered every year at CAALA VEGAS. Why? Because it is one of the singular most important aspects of trial. Experts determine whether or not our case holds water. Can we establish liability? What kind of damages are we putting on the board? How is the Defendant attacking liability – breach of duty or causation?
How well our expert holds up in deposition determines how scared the defendant might be in proceeding to trial. How our expert performs will convince a defendant to pay more money to settle the case.
Yet, far too often, we get caught in the daily grind of our practice and litigation so that we don’t prepare our experts accordingly. We assume they know what they are doing. We assume a five- to fifteen-minute meeting in their office before the deposition is sufficient.
We should never assume that our expert will care as much about our case as we do. We must prepare ourselves and our experts well in advance of designation, deposition, and trial. Below are five steps to follow for the preparation and coordination of our experts.
Step One: Begin with the end in mind
The end is a verdict at trial in your client’s favor. How do we get there? We need to visualize the information we will pass along to our jurors. First, we must know which jury instructions will be given. Second, we need to formulate our theme/theory of the case. Finally, we should have a general understanding of what information we will need to fill up the theory box and the jury instruction boxes. Taking the time “to begin with the end in mind” will allow us to see how the expert fits into our case.
Step Two: Obtain and know the materials
Now that we know what our theory is and what information we want to give to the jury in all those boxes, we must determine if we have it all. Do we have all the necessary materials, evidence, and information? Various types of evidence include:
• Medical Records
• Employee files
• Police reports/ambulance reports
• Follow up Examination or procedures
• Deposition Testimony (PMK, witnesses, etc.)
We should take the time to formulate our discovery plan. Update it from time to time. See if we have all the evidence we need. If we see a hole or a new area of information is needed, seek to fill that gap as quickly as possible. However, just having these documents/information is only half the battle. To truly prepare our experts, we must know and understand what it all means. For example:
• Create summaries and timelines of the medical records
• Create summaries and timelines of email exchanges
• Draft summaries of depositions’ testimony
• Visit the scene (if applicable) and lay out site photos, diagrams, etc.
• Fine-tune the theory of liability and the theory of our case
The process of putting events into a timeline puts things into a completely new perspective. The process of taking the time – butt in seat time – opens up new nuggets of information that would have slipped by. When we put all these items together on our summaries and timelines we can communicate our theory of the case to our experts. This is all preparation work done by us to help us educate our experts. An added bonus – when we know all this information, where to locate it and how to use it, the expert won’t need to spend as much time working the case up, which will save us money.
Step Three: Create visual aids
To the extent possible, now that we have harnessed all the evidence, now is the time to put draft demonstrative exhibits together. For example:
• Turning MRI/C-SCAN/X-rays into demonstratives. Before and after pictures if possible, showing the mechanism of the injury, the extent of the injury
• Deciding which photos to use• Animation of how the incident causing the injury occurred.
• Visual Timeline of events with links to e-mails or deposition testimony
There are innumerable types of demonstratives that can be created. If we have these together in advance of meeting with our expert they will help us to know what we want the expert to testify about. It will guide the expert toward clear and concise testimony that will support our theory of the case. Most of us are visual learners – experts are no different. Taking the time to make initial drafts of these images will greatly aid in preparing the expert for deposition and trial.
Step Four: First meeting with expert
Now that we’ve harnessed all the information into our theory of the case and our jury instructions, it is time to reach out and confer with the expert. The first meeting with the expert – whether at the time you hire the expert or soon thereafter – sets the tone for the whole relationship. Don’t be afraid to take charge. We know our case better than the expert. Explain what happened, how it happened, the theory of the case, and how it all fits together. Spend time on the phone or in person explaining to the expert all the information and evidence you will be forwarding to them. Explain to them what they should focus their attention on and where. Make sure to send the expert all the information. Tell the expert about the theory you have of the case and point them to the correct documents, information, etc. so they can get an understanding of everything. During this first meeting, most often a phone call, we can find out if there are any holes in our information that we must fill.
Give the expert a timetable. Ask when they will be ready to have a follow-up in-person meeting for one hour. Suggest and agree to go to the expert’s office to have this follow-up meeting. But get the second meeting on calendar. This intimate level of preparation will be appreciated by your expert as they will see that you are enthusiastic. The expert will see that you took the time to learn the information and they will see that you value their time, too.
Step Five: Make sure your expert is on board while there’s still time to redesignate
The second meeting is the time to make sure the expert is on board. If not, now is the time to drop that expert and find someone who better understands your case.
This second meeting must NOT be five, ten, fifteen days before or even the day of the deposition. This must be days or weeks before your expert is even designated. We have all fallen victim to hiring an expert at the last minute, getting the expert the documents late, and/or hearing what their opinions are going to be at the last minute. This is a surefire way to have our case explode in our face.
Find out if the expert needs more information. Go over what you expected them to find and see if it jibes with what they found. Help to formulate how the opinion is going to be delivered at deposition and at trial. Make sure the testimony fits with the theory of your case. If it doesn’t, find out why not. Find out if the expert didn’t see all the information or perhaps missed something or didn’t understand it all.
Because we took the time to know the evidence and how it fits in the theory of our case, we can walk through it all with the expert and explain how it all fits together. We can go over the demonstratives in the meeting with the doctor so they understand what message/theory you want conveyed to the jury. This is also the time to make sure the expert can lay the foundation for the exhibits/ demonstratives we have created.
The second meeting is all that may be necessary, but be prepared to meet with the expert in an efficient and useful manner as many times as necessary before their deposition. Making sure the expert is prepared for the deposition is our job as plaintiff attorneys.
Martin I. Aarons has been an employment law trial attorney for more than 18 years. As a trial lawyer, Martin has handled all types of employment related cases on behalf of people who have suffered a workplace injustice. He specializes in cases involving discrimination, sexual harassment, sexual abuse, retaliation and whistleblower cases of all kinds, shapes, and sizes. Martin was elected to the Executive Committee of the Consumer Attorneys Association of Los Angeles (CAALA), and will be CAALA's President in 2025.
by the author.
For reprint permission, contact the publisher: Advocate Magazine