The role of an expert witness is to present unbiased testimony that helps the fact finders understand technical or complicated issues at hand in a case. Although it may be tempting to use a heavy hand when preparing your experts to testify in court—particularly for those experts who are new to the litigation process—it’s imperative to avoid “coaching” your expert to adjust their opinions in a way that benefits your case. Lawyers that creep into coaching experts run the risk of destroying the credibility of their expert’s testimony and adversely impacting the outcome of their case.
Preparing vs. Coaching Your Expert: What’s the Difference?
Preparing your expert for court is perfectly acceptable, and frankly, critical to the success of your case. Informing your expert of basic courtroom etiquette, how to state the facts without offering legal conclusions, and going over ways to boost credibility in the eyes of the judge and jury all fall within the realm of permissible expert witness preparation.
Expert witness coaching, on the other hand, can involve asking your witness to skew the facts or omit critical information in order to strengthen your case theory—in short, anything that borders on instructing your expert to lie or obscure the truth. Because certain preparation methods, as well as methods of delivering testimony, can be misinterpreted as “obscuring the truth”, it’s important to tread with caution when advising your expert on how to perform in court.
Avoiding the “Hired Gun” Perception
The key to successful expert testimony is to avoid the appearance that an expert is a “hired gun” only offering opinions in your client’s favor. Never coach an expert on how to answer a question from you or the opposing counsel. It goes without saying that asking them to only provide answers that support your claims or defenses will reek of a “hired gun” and destroy the credibility of their testimony.
Another red flag for a compromised expert witness is a questionable litigation history. Perhaps the expert has been repeatedly retained by the same attorney for cases across a range of topics only marginally related to their specialty. Perhaps the expert has been offered extraordinarily large payment for their services as an expert witness. Perhaps the expert has published research or articles citing one opinion on a topic and offered courtroom testimony arguing the opposite.
A track record of offering conflicting opinions or hefty compensation can raise eyebrows, inviting opposing counsel to ask questions to try to demonstrate to the jury that you have essentially paid your expert to testify positively on the issues at hand. Opposing counsel may go so far as to file a motion to have your expert’s testimony struck from the case due to bias. This can delay the case’s progress and increases costs, as you must defend your expert’s testimony and credibility. It is in both your interest and your client’s to vary the experts you use in your cases and to pay standard industry rates for their services.
Finding the Best Unbiased Expert
To ensure your expert’s testimony is effective and unbiased, it’s best to search for the best expert in the areas at issue. If there’s a chance an expert might appear biased towards you or your client, don’t hire them. For example, if your firm repeatedly uses the same expert it could open their credibility up to criticism. Jurys might think they only testify in glowing, biased way about issues that are favorable to the cases at your firm so your firm will continue to pay them fees. Expert witnesses that have any professional, familial or other relationship to you, your client or their business should be avoided like the plague. These can be strong indicators of bias that can get the expert’s testimony thrown out or be perceived as biased and therefore discounted by the jury.
Preparing First-Time Experts
Informing the expert on how the court proceedings will transpire and when they will likely be called to testify isn’t considered coaching. A first-time expert, in particular, may have a lot of questions about the roles of the jury, judge and opposing counsel and how things work in a trial or deposition. They may ask you where they should sit as they wait to testify, what time to arrive and how they will find out about any changes in the schedule. Providing experts with this type of information won’t jeopardize your case or their testimony.
Of course guiding a first-time expert witness on courtroom etiquette and appearance, for example, is acceptable preparation. An inexperienced witness may not be aware of effective courtroom testimony protocol, such as listening to the entire question before answering, or the importance of looking at the jury when answering.
Body language and appearance are also very important to the impact of expert testimony. Suggesting that a first-time expert witness dress in a professional manner when testifying is fine. Steady eye contact and good posture can impact the credibility and believability of their opinions expressed during a courtroom appearance. Instructing your expert on how body language can impact how their testimony is perceived is within the acceptable boundaries as well.
Preparations on Case Issues
Providing your expert witness with medical records, transcripts of depositions or conveying the issues of the case to them is not considered coaching. Your expert’s credibility can plummet if they appear unfamiliar with the facts of the case, or provide erroneous information relating to the case issues.
Certainly, you can discuss the topics on which they will testify for the case. When there are complex issues on medical conditions, standards of care, or industry protocols, for example, it’s fine to lay out the facts in the case and why the areas where you believe the jury will require their testimony to make a judgement on what happened in the case. Especially in complicated technical areas, it’s reasonable to discuss exactly what niche or specific areas need to be explored and opined on during an expert’s testimony.
Stick to Facts, not Opinions
In the end, remember it is okay to provide facts and information to expert witnesses as described above. Their job is to be a neutral educator that helps juries understand technical aspects of cases. So be a fact provider, not a coach.