Preparing An Expert Witness For Direct Examination Part 1

In Preparing an Expert Witness for Direct Examination: Time for a Pep Talk, medical expert witness Burton Bentley II, M.D., FAAEM, ELITE MEDICAL EXPERTS, LLC, writes:

From the perspective of the expert witness, direct examination is not a particularly enjoyable process. The adversarial environment, intensity of focus, and technical nature of the data all combine to add stress to an already demanding situation. Experts themselves also may have some degree of self-doubt, a subliminal fear of being placed under scrutiny magnified by the inherent human tendency to avoid criticizing others. In the absence of a focused mind, even the staunchest expert may melt under the spotlight of skillful direct examination. Consequently, an astute litigator must understand the perspective of the expert and then reinforce the skills that will lead to the expert’s success. Toward this end, a basic pep talk is a good place to begin.

Start with the essentials. Explain that direct examination is a dialogue between the expert and opposing counsel. When the examination occurs at deposition, it may take place at a law firm, an office, or another neutral location. When it occurs at trial, the expert will be in front of a judge and jury. Many experts view deposition as a dress rehearsal for trial, a mistaken perspective that downplays the significance of rigorous preparation and attention. The key is to understand that deposition is simply an extension of the courtroom and that testimony will be under oath and used in court. Consequently, instruct the expert to prepare for deposition and trial with equal intensity. Remind the expert that their behavior, mannerisms, physical appearance, and attire may directly or indirectly influence their perception as a credible expert. Since you are experienced in the techniques necessary to prevail at trial, build teamwork by asking the expert to listen carefully to your suggestions. Similarly, remind the physician that you respect his or her own critical strengths: the skill of speaking to people in stressful situations and the intelligence of being a learned expert. It is the combination of the litigator’s experience and the physician’s abilities that will increase the probability of success in any given case.

Dr. Bentley is a practicing physician and CEO of ELITE MEDICAL EXPERTS, LLC.
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