Pre-trial meetings with the attorney who will be presenting the expert’s evidence in court are not a luxury.  They are essential.  Though it may be at times challenging to arrange, it is recommended that the expert insist on a meeting.  Every time I have a case that involves expert evidence, I have at least one pre-trial meeting with my expert witnesses.  These meetings are beneficial for both the attorney and the expert.  These meetings serve a number of important purposes.

Understanding the Expert Report

Though the report may be perfectly understandable to the expert, discipline-specific terminology may make it less clear for the attorney who has to lead the evidence.  One goal for the meeting is to thoroughly discuss the contents of the report so that the attorney can gain a proper understanding of terminology and the applicable scientific processes.  It is not necessary for the attorney to know the expert’s area of expertise as well as the expert – that would be inefficient and unrealistic.  I have led expert evidence in dozens of different areas of expertise and it has never been my goal to know as much as my expert witness.  My role is that of the attorney, not a pseudo-expert.  What the attorney needs to achieve is a sufficient understanding of the expert’s work so that the evidence can be properly led in court and so that the attorney will understand cross examination questions and will be able to re-examine as needed.

Frequently, an attorney will over-estimate what an expert witness is able to say in court and a pre-trial meeting will dispel those views.  Conversely, an attorney may not fully appreciate how much the expert can actually say and how helpful that will be for the case.  Either scenario will benefit greatly from a meeting.

Preparing for Questioning

An expert wants to be asked questions that are appropriate for the work that has been done in the case and within the realm of the expert’s area of expertise.  Mapping out a plan for direct examination is a task that can profitably be done with the attorney and the expert working together.  I am not suggesting that all questions be crafted like a script with the input of the expert but that the areas of questioning and the order in which those areas are covered are worthy of discussion.

Often times, there are aspects of an expert’s evidence that require special attention on the witness stand.  Such areas include evidence or results that are equivocal, areas of scientific uncertainty, contrary scientific theories, previous testimony given by the expert that may be raised in the present case, as well as weaknesses and strengths in the evidence.  A meeting allows for a discussion of these matters and an opportunity to map out a plan for handling them.  These are also appropriate times to share any relevant articles, research papers or other materials that will assist the attorney in understanding the area of expertise and in properly leading the evidence.

In the event the expert has previously given testimony or published material contrary to some aspect of the expert’s work in the current case, that needs to be discussed in advance of trial.  If there is contrary research or theories in the area of expertise that may come up in cross examination, this too is an opportunity to discuss those topics.

One of the most common questions I get from experts during pre-trial meetings is what opposing counsel might ask in cross examination.  Generally, I will have a pretty good idea of what topics opposing counsel will address in cross examination and those topics can be raised and discussed in a pre-trial meeting.

Opposing Expert Witnesses

In cases where there is an opposing expert, the expert takes on a much more involved role.  Pre-trial and mid-trial meetings will be critical.  This topic will be discussed in more detail in a later post on dueling experts.

A Final Word

In cross examination, opposing counsel may ask questions about pre-trial meetings that suggest that such meetings are improper.  Experts must not fall for that trap.  Pre-trial meetings are not unethical or conspiratorial in nature.  They are a proper component of the professional relationship that the expert has with the attorney.  It is always in the best interests of the attorney and the expert, and therefore the case, to meet pre-trial.