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Insight Report Vol. 3, Number 8

The EXPERT WITNESS

In this business of providing products for the general population, i.e. medical devices, pharmaceuticals or foods, you are constantly being exposed to the possibility of a lawsuit involving your products. It doesn't make a difference if your product was misused, abused or incorrectly prepared or repaired, product liability exposure is one of the most unpleasant things you have to deal with.

Of course, most companies carry liability insurance in the event of such a problem but even with such coverage, the possibility of a lawsuit is always there. And wherever there are lawsuits there will also have to be expert witnesses. Finding the right one could decide the outcome of your case.

Just recently I read an interesting book titled, "How to Excel During Cross-Examination" by attorneys Steven Babitsky and James J. Mangraviti, Jr. As the title indicates there are techniques that can be used to assure your expert witnesses will be successful in their testimony.

As the authors' dedication states, "This text is dedicated to those expert witnesses who willingly put their reputations and credibility at risk each time they undergo cross-examination," the real value of the expert witness is not in his testimony but in their ability to maintain their credibility under cross-examination.

What is the role of an expert witness? The expert witness is supposed to "assist the judge or the jury to understand the evidence, or to determine a fact in issue." Someone would be qualified to be an expert witness through "knowledge, skill, experience, training, or education." As an expert you would assist the judge or the jury, by rendering an opinion that will help prove or disprove a fact at issue.

The book goes on to state that the role of an expert witness is to tell the truth and render an opinion. You will be more effective expert witness if you appear to be a "kindly teacher" and do not attempt to advocate for the party who has hired you.

Remember, 80% of litigants reply on expert testimony in civil trials. The chance that you would need to use an expert witness in a liability case against your company or product is very high. Though, the expert witness will go through direct examination by the attorney that is retaining them, the real test of the expert witness will be during the cross-examination by the other party's attorney.

The cross examination will be used to tried to achieve several goals: 1. Lessen the impact of the testimony given on direct examination. 2. Use the expert witness' testimony to support the client's position. 3. Directly attack the opinion given.

When hiring an expert witness you must make sure that your expert stays within their area of expertise. Lawyers have reported or written that there can be nothing more enjoyable to a lawyer than to be able to knock out a dishonest or ignorant expert. Others have stated that the cross-examination resembles the peeling of an onion, exposing layer after layer of weaknesses, error and fallacy.

At times, companies will use their own employees as experts concerning a liability suit. You have to make sure that the person you chose is the right one.

So, when you or your attorney is deciding on an expert witness you must make sure that this person or persons has the credibility you are looking for to assure that not only will the expert be able to support your case but also be able to withstand the cross-examination.

The book describes the voice of experience concerning what was like to be crossed examined by an experienced a trial attorney. Here were some of their responses:

"How does it feel to be boiled in your own blood? That is one of the many emotions I have felt during the cross-examination...the strategy is to impeach you testimony and destroy your credibility. They want to make you sound unbelievable to the jury."
"The better you are as an expert and the better your reputation, the harder the opposing attorney will work to take you out and the better he will prepare for the battle."
"Being on the stand can be a psychologically numbing experience - faced with a relentless cross-examiner, questioning everything that you've said in court and often time out of court, can be traumatic."

So a word to the wise, the selection of the right expert witness could play a critical part in the outcome of your case. The expert must be able to maintain the sympathy of the jury and stay within his/her expertise.

It is unfortunate that we have to be aware of what it takes to defend ourselves but in today's litigious society and the complexities of the new technologies being prepared includes having available the experts you require.

Next Month’s Insight Report –

The next Insight Report Vol. 3 #9

To Be Announced

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