Recently, a federal appeals court rejected the appeal of a woman who said the trial court was wrong to bar her expert witness from testifying. She filed the appeal after a jury sided with the retail giant she had sued after slipping on a puddle of water in one of its stores.
The appeals court agreed that the lower court had properly barred the witness she wanted to use as a retail safety expert. He had no academic background or formal training in retail safety, and his only work in retail was as a stock clerk a half-century earlier.
Choosing an expert witness, or even deciding whether to use one, requires skill. Expert witnesses are costly. And if one falters on the stand, he or she can damage a case. Also, if one side hires an expert, the other side is bound to bring one in, too. So, an experienced trial attorney will first determine whether hiring an expert is good strategy.
If the lawyer does decide to use an expert witness, the next step is to hire one that can survive a potential Daubert challenge — a move by the other side to discredit an expert witness and possibly get the judge to bar his or her testimony. An experienced trial lawyer anticipates challenges when selecting an expert witness and, as a result, can respond effectively if any are raised.
Finally, a lawyer can select a challenge-proof expert, but if he or she isn’t properly prepared for the witness stand, an expert witness can still crash the case. Attention to detail is as crucial in getting an expert witness ready to testify in court as it is in selecting the witness.
A skilled trial attorney determines whether using an expert witness will help a plaintiff’s case. If the answer is yes, the attorney does the background research needed to select a good expert witness and then calls on courtroom experience to properly prepare the witness for trial.