The Top 10 Expert Witness Regrets of Attorneys

Whether being questioned in a deposition or at trial, successful expert witnesses not only recite the facts and explain their conclusions in laymen's terms, but they also explain it with credibility. In truth, the credibility of experts in some cases is more important than the validity of their findings.

Attorneys are often highly focused on the content of their cases; working with the expert witness on how to deliver that content is often perfunctory, or limited due to time and fees, or an expert's own belief in their limited need for trial preparation. Regret comes later for attorneys who assumed their experts were ready for trial, especially novice experts.

For those experts who missed trial prep:

10. Saying "Never." An unequivocal answer can be powerful — if the expert witness is fully prepared to defend it. Otherwise, saying "never" (or "always"), and later having to qualify the statement at best weakens the expert's credibility. The apparent veracity of a conclusion requires a convincing response and the expert's own conviction to it.
11. Answering more than asked. Responding with broad answers increases the risk of unnecessarily confusing judge and jury with more details than needed. An expert may feel justified as an advocate of the truth, but they may not get many expert witness assignments. Listening carefully to questions is standard advice to keep answers focussed. Trying to squeeze in additional facts can be helpful, but capable attorneys will follow-up with more questions if needed.
12. Giving snap responses. Responding quickly can deny an attorney time to object. And stating the obvious, if an objection is raised, never respond until the question is rephrased, or the judge rules on the objection.
13. Beginning with "Yes" or "No." Beginning an answer with "Yes, but …" or "No, however …" may give opposing counsel an opportunity to interrupt before the expert witness has a chance to fully answer the question.
14. Saying "I don't recall." While it is better to say they don't know than to make a wild guess, experts can lessen the impact by explaining the lack of specific knowledge, or at least softening their responses, without resorting to a terse "I don't know" or the seemingly, lawyer-advised, scripted "I don't recall."
15. Nail-gazing. Body language mistakes can be costly to expert witness credibility. Lip-biting, crossed-arms, gazing-away, nail-picking, chin-resting gestures, fist-clenching — all the non-verbal expressions of anger and self-doubt — are well known, but often mistakenly made. Listening to a question, for example, does not require looking at whoever is asking the question, but appearing attentive does. Making at least brief eye contact with the questioner helps the expert witness appear engaged and credible; nail-gazing does not.
16. Using buzzwords ad nauseum. Whether it is the jargon of the profession or a currently fashionable phrase, buzzwords are best used few and far between, unless explaining the argot of the adverse expert witness. Complicated and highly technical terminology may seem necessary, but it may confuse more than help the trier of fact.
17. Sounding scripted. Experts often prepare for specific questions they expect to be asked, but when the answers sound canned or scripted, they lose authenticity. Jurors notice when the same phrase is used over and over again. Like actors on a stage, credible expert witnesses sound spontaneous. That's not to be confused with sounding ad-lib, which is reserved for musicians and comedians.
18. Being theoretical. Scientists tend to be theoretical; lawyers, factual. Experts offer their opinions and advocate for their own findings, based on what they have discerned as the facts. Attorneys go after those facts, sometimes in ways unexpected by experts. Scientific experts can be caught off guard when the judge has no clue what the scientific method entails (which is often the case).
19. Being long-winded. The longer the response to a question, the greater the risk the jury will get lost along the way or opposing counsel will return with a "Was that a 'Yes'?" jibe. And if a long response is required in a jury trial, at least glancing at the jurors on occasion can help ensure they are following along. Engage and educate the jury is the mantra; not bore and frustrate.

Novice expert witnesses' experience with the law may be no more than watching the movie A Few Good Men, and even seasoned experts may need more trial preparation than they would assume, or be unaware of the changing dynamics of a trial.

Some might dismiss this list as only the regrets of novices and neophytes, but that would be cognitive hubris — a subject better dealt with elsewhere.