The task of finding the right expert witness for your case can be daunting. It is not as simple as finding someone who is qualified in the specific field of interest relevant to your case, but also whether that individual has the skills to effectively communicate their knowledge to the jury. Whether an expert is retained to testify or just act in a consultancy capacity, they should be prepared to share their knowledge and opinions with the attorney and litigant as well. Below are some key communication skills to keep in mind when searching for your expert.
1) The Right Combination of Qualifications and Techniques
Exclusion of an expert’s testimony via a Daubert challenge or voir dire questioning can pose a serious threat to the overall success of a case. In light of this risk, the importance of an expert’s qualifications and techniques is certainly worth reiterating. During a Daubert hearing, a judge will consider the enumerated factors outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) to conclude whether the expert possesses the requisite level of expertise and whether the testimony is both relevant and reliable. Generally, it is not the outcome, but rather, the methodology used by the expert in reaching his opinion. Thus, it is important to retain an expert that not only possesses the requisite knowledge to state his opinion, but also has a tried and true methodology on which he can rely.
Likewise, the purpose of the voir dire process – which typically occurs during the first few questions of direct examination – is to establish that the witness has a qualified expert in the pertinent field. Although a mere recitation of the expert’s curriculum vitae may sound impressive, it does not guarantee that the expert is qualified to testify about the specific subject matter at hand. An expert can be qualified through knowledge, skill, practical experience, training, education, or a combination of these factors. Experts that have a well-rounded background with particularized examples of their accomplishments, such as sub-specialties, publications, or teaching experiences, can help establish their credibility and skill at the outset of the testimony.
2) The Ability to Collaborate with Others
Like any working relationship, frequent communication between an attorney and expert increases the odds of success. By collaboratively outlining, strategizing, and preparing in advance, the case becomes that much stronger. Finding an expert that is also willing and able to work with all parts of the litigation team ‒ which can include the attorneys, clients, support staff, as well as other retained experts ‒ makes all the difference. An expert plays the role of a tutor throughout case preparation, especially when the expert possesses knowledge in an area the attorney is unfamiliar with. Therefore, an expert who is available to teach and communicate with the litigation team is a true asset.
3) Time Management and Organizational Skills
Understandably, the time commitments for a case can range dramatically, which is why every expert should be aware of their obligations (ideally, through a comprehensively drafted retainer agreement) so they can ensure their adherence to an agreed-upon work schedule. Depending upon the particular field of expertise, an expert’s preparation can be quite time-consuming, as their preparatory work may include reviewing voluminous discovery materials, conducting experiments, and analyzing past data. An expert should be able to commit to a general timeframe and meet any deadlines per their agreements with counsel. An expert that is efficient and organized can better streamline the litigation process.
4) The Ability to Write Persuasively
Pursuant Rule 26 of the Federal Rules of Civil Procedure (and most state jurisdictions, which have similar rules), expert witnesses are required to write a report detailing their forthcoming testimony as well as any facts and data on which their opinion is based. In consideration of these written report requirements, an expert should be able to articulate their opinions in written form in such a persuasive and evidence-based manner. The expert should treat his written statements just as carefully as he would his oral testimony, as opposing counsel can later use these reports against the expert during a Daubert hearing or cross examination.
5) The Ability to Educate Effectively
An expert may possess all the knowledge in the world on his particularized area of practice, but that does not guarantee he can effectively teach. Thus, it is important to always keep in mind the ultimate purpose of an expert, which is to clarify issues of professional or technical knowledge beyond the ken of a typical juror. There are a variety of ways an expert can aid the jury in their understanding of the facts at issue, which of course, varies case to case. However, there are certain teaching cornerstones that should be characteristic of all experts, such as the ability to break down the information piece by piece in layperson’s terms.
6) Effective Communication Skills
Similar to an expert’s teaching abilities, they should also be able to effectively communicate their points in an easily palatable manner. Like any skilled orator, experts should speak in a way that is both informative and engaging. A rout regurgitation of facts, an overuse of scientific terminology, or a monotone delivery all run the risk of boring the jury to the point they become disengaged. While some subjects may be more stimulating than others, an expert should be able to present their knowledge in an interesting way, such as through the use of relatable analogies or anecdotes.
7) Cross Examination Prowess
While attorneys and experts typically practice their direct examination to perfection, preparing for an expert’s cross examination is not as straightforward as it seems. The extent to which an expert can prepare for cross examination is typically dependent upon their ability to recognize perceived weaknesses or gaps in their opinions. An expert that is upfront with themselves about the strengths and weaknesses of their testimony can better predict opposing counsel’s questioning. Above all, an expert needs to be able to think on their feet, maintain composure, and articulate their responses in a calm, effective manner when combated on cross examination.
8) Demeanor and Non-verbal Cues
Sometimes, crafting the perfect testimony is only half the battle when it comes to engaging an expert with a jury. An expert’s demeanor, posture, phrasing, tone, and other verbal and non-verbal cues are qualities that a jury takes into account when determining the credibility of a witness. Without which, the entire testimony can be disregarded.
9) Tech Savvy and Demonstrative-Aid-Friendly
Whether it is a basic PowerPoint presentation or holographic virtual reality, the use of technology in the courtroom has seen a massive increase in recent years. With more and more attorneys recognizing the importance of stimulating the visual, auditory, and tactile senses of a jury, demonstrative aids can illustrate an expert’s testimony in ways that words cannot. An expert comfortable in handling graphics and other technology can enhance their testimony and effectively engage the jury
10) Likeability and Trustworthiness
Lastly, there are certain personality characteristics that are not as easily quantifiable or articulable. While likeability and trustworthiness are subjective, they are excellent predictors of whether a jury will believe your expert. Typically, in conjunction with the other skills listed above, it is important to evaluate your expert on a common sense, humanistic level. An expert’s personality may seem like a factor low on the checklist, but can actually be the deciding factor at trial. Therefore, it is important to find an expert that is personable, affable, and carries an innate trustworthiness when speaking.