America’s society has become one of a litigious attitude. Today, people in all walks of life, especially those in business, have become unsuspecting targets for those individuals who seemingly have discovered an easy method for generating income. Indeed, there are some who find a livelihood can be had simply by suing others about the most trivial of causes. When an attack is made on an unsuspecting person – or business – the recipient finds himself in the position of having to defend against it regardless of the claim. The only prudent action to be taken is to hire a lawyer for his defense. Lawyers are expensive, and defense against so-called "frivolous" lawsuits often ends up in settlement conferences because of the high cost of litigation and court delays.
Obviously, not all claims are frivolous. There are those that indeed have justification coming from both sides of an issue. Such claims contain a true difference of opinion that obviously requires a judicial decision. It is the task of the attorneys representing each side to prosecute or defend in hopes of convincing the court of justification for their side of the issue. Attorneys know the law. They know the procedures and courtroom tactics to be used in presenting their cases to the court and jury. What they don’t know nor fully understand – and often need assistance with – are the essential technical facts of their cases. For this, they turn to others. This is the realm of the expert witness. Experts are used to assist attorneys in all fields of business and human relationships. Wherever there is a court trial, there are usually experts giving testimony on the issues under consideration. There are experts in every field of endeavor; they come in all sizes, shapes, personalities, and degrees of knowledge and experience. Some are very good, some not so good; it is the attorney’s task to try to select experts who are knowledgeable and experienced both in their field and legal procedures – not an easy job.
In my years of professional practice, I have served many times as an expert witness. Throughout this period, I have observed the actions of numerous other experts – some on my side as well as those in the opposing camp. One thing that has dramatically stood out is how many of them have little or no idea of how to approach their tasks. I have seen qualified people make damaging or fatal mistakes simply because they did not know how to organize their information to present it properly to their clients, or in courtroom testimony. A good deal of the problem is just unfamiliarity with the legal process, with how to present themselves properly, and with the ability to present their knowledge and experience in focusing on an issue. The expert should be at ease with the legal process and knowledgeable of the attorney’s tasks. He should understand what the attorney is trying to accomplish as well and the direction the attorney is taking – so he may be of real assistance, not just a dictionary reciting definitions. He should be able to coach the attorney so that they may work together as a team for presentation of testimony. He should also be able to think clearly!
This book was written to present guidelines for the person who has been voluntarily – or involuntarily – called upon to serve as an expert witness whether for himself or others. It is also intended to educate attorneys on how to select and get the most from their experts in this manner.
During my years of observation and participation, the legal arena has appeared essentially as a game. It is a deadly serious game generally consisting of high stakes where attorneys apply a highly organized and determined effort in preparation and presentation of their cases. During court proceedings, personal posturing is often used and is part of the plan in presenting information to influence a jury. Attorneys are good actors and most play their roles well. It is an interesting experience to work with a capable attorney during the testimony phase of a trial.
The information contained in the following chapters was gleaned from personal observation and experience during service as an expert witness. Each chapter is presented progressively in the process of practicing this interesting and challenging art/science form. Each chapter covers a specific portion of the whole field but is not dependent upon the other chapters for understanding. Some information, however, is closely related and is briefly touched upon to ensure continuity between various chapters.
The path followed in using one’s knowledge and experience while serving a client in the legal arena contains many rewards in both personal satisfaction and remuneration. But it can also be fraught with pitfalls to be avoided. Having a map to follow when the territory becomes unfamiliar is both necessary and reassuring. Serving as an expert witness is a combination of intelligent application of knowledge, a good memory, and an awareness of emotion while working with others.
Chapter 1 explores the areas of our society in need of expert technical assistance.
Chapter 2 describes requirements the practicing expert should possess.
Chapter 3 is where the expert goes to work. This outlines the investigative efforts he makes on behalf of his client.
Chapter 4 addresses the task of placing relevant information gathered during the investigation in report form.
Chapter 5 introduces the expert to the officers of the court – the attorneys.
Chapter 6 puts the expert on the firing line during the deposition proceedings. It describes the process from subpoena through conclusion of the discovery session.
Chapter 7 orchestrates the information of the expert witness when he is preparing for court testimony.
Chapter 8 describes the various forms of legal proceedings.
Chapter 9 outlines the often-omitted task of reviewing the trial, its outcome, and the role the expert played in the process.
Chapter 10 addresses compensation for services as an expert witness.
A Glossary of legal terms is presented as an appendix to the book.