In May, my colleague, Jonathan Terrell, posted a blog describing the mental preparation needed to provide expert testimony. He noted that since our justice system is typically an adversarial one, you must be mentally prepared for the battle. To prepare himself, he focuses on things like having a commitment to the truth and maintaining a positive energy throughout his time on the stand. You can read more from Jonathan here. I wanted to supplement his blog with one of my own that focuses less on mental preparedness and more on the practical preparedness.
When I am retained as an expert witness, my preparation starts on day one – even though an eventual trial may be many months away. These are some things I find to be good rules to follow so that when that trial does arrive, I am not scrambling to get prepared.
Do the work. I often work on large projects that require a full team of KCIC consultants to help get the work done. While it would be easy to give direction and then let others do certain aspects of the work while I focus on the more complex analysis that goes along with it, I find it absolutely necessary to do some amount of the work myself. I do not consider any task one that should be fully delegated to others. Rather, I test methodologies and processes by doing some of the work my team is completing at my direction.
Stay involved. Let’s face it, we all get busy with other projects, business development and personal commitments and, at times, find it difficult to focus on all of our projects. As a testifying expert, I find it imperative that I stay involved no matter what other commitments are competing for my time. Especially on longer projects, I make sure to return to each step periodically and work with my team to discuss assumptions, methodologies, and outcomes. In addition to ensuring that I have full understanding of the work the team is preparing at my direction, my involvement also helps ensure consistency over the length of the assignment.
Prepare documentation. One thing to avoid as an expert is trying to remember all the details and aspects of the project that may have occurred months ago. Assembling solid documentation of the sources of information, guidance about historic practices received from counsel or the client, and my team’s methodologies is important in my preparation of an expert report and for testimony. Keeping this documentation to be factual rather than opinion based is also important as it will likely be discoverable.
Question assumptions and methodologies. As a project continues, it is important to continually question and test the assumptions made and methodologies used. Thinking about the questions opposing counsel might ask or methodologies opposing experts may use, can be a very useful tool in continually getting prepared for a trial. “What will they argue is a weak assumption?” or “What pieces of information will they rely on in different ways?” are questions I ask myself as the project continues.
Accept and embrace change. Often, as work is in process or even complete, new things come to light as elements change in the case, and the scope of the assignment may change along with that. As an expert, I try to roll with the punches as new information is uncovered. When this happens and we shift or change our focus, I always go back to the prior steps of preparedness and continue to move forward. This means I continue to do the work, stay involved, update documentation, and test any new or changed assumptions and methodologies.
Trust in and defend your work. When preparing an expert report, I ensure that any conclusions that are drawn are my own and are defensible using the work that my team and I prepared. Our clients and their counsel may hope for certain results or conclusions based on the work we have done, but while developing my report, I make sure to push back in instances where I am not able to fully defend a position. The conclusions and opinions must be my own and must be supported by my work.
Everyone is different and has to prepare in a way that is proven to work for them, but I feel that having a set of guiding principles – whatever works for you – makes things a lot less stressful in the long run and leads to a solid performance on the stand.
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