Trial Magazine

Great experts can be very helpful at trial. But a weak expert can undermine your client’s case. Sometimes, you might be better off not calling an expert to testify. But how do you know when you should call an expert to testify at trial and when you shouldn’t? Consider these three points.

Do you need expert testimony to convince the jury? The first point you should consider is whether you need the expert’s testimony. To illustrate, suppose you have a complex products liability case involving an intricate medical device, a dangerous drug, or a cancer-causing pesticide. In those cases, you may need an expert to explain the product—including its makeup, defects, or dangers—to the jury. Conversely, you might choose not to call an economist in a catastrophic injury case with a client who has a low earning capacity because the low economic damages might cause the jurors to award less for pain and suffering than they may have otherwise. Some experts, like the economist, may be helpful in pretrial settlement talks but detrimental at trial or unnecessary altogether.

Similarly, if the testimony or opinion is redundant, not calling a vulnerable expert could be the best option. You might have multiple experts with overlapping opinions. If so, it might be better to hammer the point home with one strong expert.

Is your expert a good communicator? Not calling an expert at trial is one way to limit the defense’s opportunities to damage your client’s case through cross-examination. If your expert is not a good testifier or not jury friendly (for instance, they don’t present well), consider not calling them to testify. If it’s too easy to poke holes in your expert’s opinions, or if the expert’s qualifications are easily challenged, it’s best not to call them.

Certain experts can be useful in pretrial matters but may not be the best trial witnesses. And beware of experts who may present bias-related issues. The defense can and will exploit experts who work primarily for plaintiffs, have given bad (inaccurate, contradictory, or substantively problematic) testimony in another case, or have a history of being struck or limited.

Avoid calling experts who are not willing to do the work required to properly prepare for trial and to testify. Although these experts may be useful to provide evidence in support of a summary judgment response or to otherwise help you build or defend your case before trial, an unprepared expert can damage your case and turn jurors against you. This analysis starts pretrial. Pretrial meetings, phone calls, and videoconferences are a great way to assess your experts and determine whether they should testify at trial.

My firm almost never deposes the defense experts. This lets us save our best questions for trial and avoid previewing our cross-examination for the defense. Don’t give the defense an early look at your playbook. If the defense deposes your expert, it can provide a good preview of what the defense will do at trial with your expert and whether your expert can handle cross-examination. If your expert cannot hold up in a deposition, they will likely fare worse at trial.

Make sure you have your appellate points covered. Ultimately, your goal at trial is to win a jury verdict that can withstand appellate scrutiny. In many cases, expert testimony is required to uphold a verdict. Sometimes the best way to obtain this testimony is by calling defense witnesses in the plaintiff’s case. Defense witnesses often can provide needed admissions through well-planned cross-examination.

Before deciding to sideline one of your experts, make sure you have the necessary evidence before the court to survive directed verdict motions and appeals. That evidence may come from another expert, testimony from corporate representatives or defense witnesses, or admitted documents. A good appellate lawyer can be a great resource to make sure that the evidence you need has been—or will be—admitted.

Next time you’re preparing for trial, take a hard look at your experts. Think about the positives and negatives of having them testify. Call your strong experts, don’t call the others, and focus your best efforts on attacking the defense experts on cross. That way, you can avoid bad testimony from your side, score points against the defense, and present your best case to the jury.

Jason Itkin is a partner at Arnold & Itkin in Houston and can be reached at jitkin@arnolditkin.com.