Expert Witness Testimony: Advice from the Bench

Expert Witness Testimony: Advice from the Bench

State court Judge Caroline Baker has heard just about every type of civil case from contract disputes to medical malpractice. What impresses her most about the multitudes of expert witnesses that pass through her courtroom?

  • Experts who make themselves available to testify at trial. The judge says live testimony is much more effective than viewing it on videotape.
  • Experts who have an updated curriculum vitae (resume) for the judge and jury.
  • Experts who are organized and prepared. “Jurors pick up on that,” Baker confides. “Even if they don’t understand technical terms they will perceive if you’re disorganized and that will diminish your credibility.”
  • Experts who make their point in plain English, especially when a jury is present. There’s a delicate balance between making a point clearly and condescending to a jury. When in doubt, Baker suggests using common sense and relating the point as much as possible to everyday life experiences.
  • Experts who are concise, especially with a jury trial. Jurors have notoriously short attention spans and get distracted easily. Baker recommends expert witnesses state their background, training, basis for their opinion and the opinion itself. She also recommends visuals whenever possible to keep attention riveted and the testimony flowing.
  • Experts who have reviewed all sides of an argument. Baker encourages experts to read the opposing side’s documents and depositions. “If not, it looks as if you formed an opinion without looking at all the evidence or formed an opinion quickly without reviewing all the pertinent information.”
  • Experts who have the documentation to back up their opinions. Without documentation, Baker considers an opinion to be speculation. And she wants to see as much documentation as possible about both the numbers and the admissibility of the expert testimony.
  • Experts who don’t sound defensive on cross examination. Baker recommends lawyers go over any questions that could come up during cross examination so experts can reiterate their positions without sounding defensive.
  • Experts who don’t go too far. She cautions experts against taking a position they can’t back up. If experts do exceed the boundaries of their documentation, they risk losing credibility and jeopardizing the case.
  • Experts who haven’t let the attorneys talk them into taking positions with which they are uncomfortable. Do that, Baker says, and the experts and lawyers risk losing credibility in front of juries.

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Inspectors as Expert Witness
As the home inspection profession grows, more and more inspectors are finding opportunities to utilize their expertise in not only a crawl space or a top a roof, but in a courtroom as an “expert witness.” This is work that can be both lucrative and professionally challenging. Often, these cases involve a home buyer who is unhappy with the inspection report they received. When such a dispute reaches litigation or arbitration, both sides require the services of an expert witness. Some consulting firms make a good living providing consulting/providing expert testimony in a one niche area, such as disputes involving roofs or the construction deficiencies of PUDs (Planned Unit Developments). Your area may have a particular “niche” opportunity to serve as an expert witness, such as new construction, historical restoration, manufactured housing, (spell out) EIFs, pest/termite, radon or mold issues.

Here are a few things to keep in mind, according to inspectors who have experience as an expert witness:

  • Keep track of billable time, including “down time” while waiting to testify.
  • Be prepared: find out what to expect before you enter the courtroom. In most cases, your client’s counsel will want to meet with you prior to court. This is the time to ask questions.
  • Keep your answers short and sweet. Don’t offer explanations or expand on your answers. Take your time and think through each question before answering.

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