How to Work Successfully With Attorneys during Questioning as an Expert Witness

Interactions with you differ vastly between your retaining lawyer and the opposing attorney

. On the surface, this may be intuitively obvious. As an expert witness, you have to understand the relationships that exist below the surface.

When you work with your own attorney, you become part of the team that selected you. Your team wants to pull the facts together and best present whatever helps their case. If you testify during a trial, mediation, or arbitration, your attorney-client will ask questions to extract helpful findings from you. You will know in advance of each proceeding the sorts of questions that will be asked and your lawyer will know in advance what findings you will present.

When you are answering questions from the attorney on your side, you want to be helpful, not hurtful. Your goal is to simply and clearly present the helpful facts that you have uncovered or the helpful opinions you have come to. A further goal is to elaborate just enough to help the judge or jury understand and to convince them of what you say. Unless explicitly requested by one of the attorneys, do not offer data that you may have discovered could hurt their case. You are only a pawn in the proceedings. The attorneys try to move you in ways that will help them.

Your lawyer is in an interesting position. He has more latitude in a deposition to object to certain questions than he will have in a trial. The posturing and the jousting that goes on between your lawyer and the opposing attorney during a deposition may confuse you. You will also be confused when your attorney objects to something and then tells you that you can answer the question anyway. Legal reasons exist for these objections, and the attorneys have to set themselves up for objections that they will use during a trial because they initially expressed them in the deposition. But another reason exists for discussing attorney commentary.

Listen closely when your attorney talks, whether during a deposition or during the trial. During your deposition, your attorney will not speak often. When he does speak, it may be for a legal purpose. However, he may also be attempting to convey information to you. If your lawyer explicitly tells you not to answer a question, don't answer the question. Just comment on the record that you are not going to answer the question on advice of your retaining lawyer.

During a trial, your attorney will also not say much during cross examination of you by the other lawyer. Pay close attention if your attorney objects to one of the cross examining attorney's questions. If you are then instructed to answer, state that you did not understand the question, even if you believed that you did, and ask that it be rephrased. Try to figure out why your lawyer objected and what the purpose was behind the cross-examiner's question.

Your lawyer may be attempting to convey important facts to you. He may be asking the other lawyer to clarify something because he senses you will not ask for that clarification; he may know you haven't realized a possible trick in the question. If your attorney does indeed do this, the other lawyer will realize this and sparks might very well fly between the two of them. Leave the posturing and the arguments to them, but use the interplay to figure out what guidance your attorney is trying to give you.

Everyone understands which side hired you. Everyone knows what expert witnesses are supposed to do, and they do not expect you to advocate for your side, or be adversarial to the other.

While you can comfortably and persuasively present the positive facts that you have discovered to your lawyer in answer to his or her questions, you can tactfully and politely be unhelpful to the opposing attorney during his questioning. Your answers should be, of course, proper and honest. However, they do not have to be expansive. Terse answers will do two things: initial, they help to keep you out of trouble, because you will not be as likely to step into traps or to make misstatements. Second, they will make the opposing attorney's job tougher. He will have to think harder, and he will have to ask the right questions to elicit answers and information from you.

How to Work Successfully With Attorneys during Questioning as an Expert Witness

By: Judd Robbins

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