CHAPTER 1

TURNING EXPERTS INTO EXPERT WITNESSESPRELIMINARY PRINCIPLES

Any thoughtful reflection on the challenges of managing a largecivil trial practice soon settles on the question of expert witnesses.Experience indicates that in a typically busy practice, expert witnessproblems arise at least weekly. Expert issues, what is more, are almostnever routine or simple administrative matters that can be easily dealtwith. They are almost always of crucial importance to the individualcase in which they arise. By extension, then, they have ramificationsthat affect the entire law office. Whether as catastrophic as an expert'scomplete disintegration/collapse on the witness stand at trial or as simpleas fractiousness in scheduling and calendaring, these failures cannot beignored. They require the commitment of significant resources of timeand energy for resolution. And frequently their impact is significantlynegative on case outcome.

Expert witness problems can be grouped into three general areas.

First, difficulties often are generated by a lack of contextualunderstanding on the part of the expert of the peculiarities of thelegal system and the courts. Much confusion results from the realitythat assumptions and practices taken for granted by lawyers andjudges are quite distinct from those that operate in other professionaldisciplines.

Next, there are breakdowns in good communication. These breakdownsresult from failure to ensure explicit understanding between the referringattorney and the expert as to the purpose and scope of the assignment,the preparation of formal reports, and the provision of quality deposition/trial testimony. Regardless of the source, communications confusion isrepeatedly experienced in expert witness practice.

Finally, lack of collaboration in administrative matters of arrangingexaminations, inspections, meetings, depositions, and court appearancesare a continual frustration.

It is occasionally (and mistakenly) said, "Leaders are born, not made."By extension it is also commonly, and again incorrectly, thought that agood expert witness is either naturally born to the work or not, and thatskill as a witness cannot be taught. It is the thesis of this chapter thatwith reasonable and effective teaching, anyone with the native ability andfaculties to attain the status of expert can, in addition, learn to be a goodexpert witness.

Specific and intentional education to achieve the foregoing is needful.It should comprise a carefully crafted curriculum of study with interactiveelements that document progress and recognize and certify successfulcompletion. Attention to the three concepts of context, communication, andcooperation forms a workable framework for appreciating how the witnesspotential and capability of experts can be markedly improved and is a pointof departure for developing teaching strategies and curricula.

I. Context

The context of expert witness activity is the modern legal system and thecourts. Therefore, a rudimentary understanding on the part of the expert ofhow and why the law and the courts function as they do is essential. Mostexperts are learned in some scientific field of inquiry. Medicine, engineeringof all kinds, architecture, biomechanics, accident reconstruction, andaccounting (to list only a few obvious examples) are all firmly rootedin scientific inquiry and the scientific method. All these disciplines relyfundamentally on observability,...