Expert Witnesses

You’ve probably heard the phrase: “it’s not always just about you.” The expert report is not just an expression of your opinions for your own satisfaction. Before you qualifications it, you cannot realize how greatly the words you choose, and the way in which you form your sentences, will affect the legal results. Your attorneys and the opposing attorneys will look more closely at what you say and how you say it than any English teacher you ever had.
Quite simply, your attorney wants to be able to quote things you say to help him make his case. The opposing attorney would love to be able to quote things you say that are either wrong or poorly expressed. He would love for you to provide him with ammunition for cross examination. He wants to hear sentences or adjectives that make you sound uncertain, and that may even enable him to use your words to support opposing points of view.
Similarly, you will have the task of reading the opposing expert’s report and looking for weak technical work or wording that your retaining attorney can undermine or attack. Your goal in reviewing the other expert’s report is to identify the technical strengths and weaknesses found there. This will help your attorney in his effort to discredit the other expert and/or his work. Knowing what to include in your own expert report should make obvious what omissions or errors to look for in the other expert’s report.
Maneuver carefully with your opinions. You must sound sure. You must be confident of your opinion. Don’t use hedge words or phrases, a common weakness in expert reports. In your reconstruction of an event, or as the result of your tests and analyses, you may reach a firm conclusion. Say so in your opinion. Do not use words like “seemingly,” “possibly,” “possibly,” “maybe” or even phrases like, “it appears that,” “it may be that,” or “it usually is the case that.” If you use phrases and words like these, I can assure you that your opinion will not be helpful. The other attorney will interrogate you about alternative ways to interpret your opinion. He will use your own hedging phraseology to suggest that your opinion should not be taken as credible or convincing. Why should the jury be convinced if you don’t even sound convinced?
By the same token, avoid absolutes, unless a condition about which you are talking is truly a sure thing with no exceptions. Just remember that is rare.
You may wonder exactly how to express your opinion when you do not believe that something is 100% certain, but are confident it is or was true. Here is the answer. The strongest and most acceptable phraseology when expressing each of your opinions is to meet the criteria that you are stating the opinion “…to a reasonable degree of scientific certainty” or “…to a reasonable degree of medical certainty.”

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Judd Robbins -
About the Author:

Judd Robbins has been an internationally recognized expert witness since 1986 in the US and in the UK. In 2010, his book “Expert Witness Training” was published by Presentation Dynamics. Robbins has advanced degrees from UC Berkeley and the University of Michigan, has been an Information Systems manager and an Education Systems manager, and consults in both computer and legal issues. Learn more about Mr. Robbins and his Expert Witness Training materials at www.juddrobbins.com

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expert witness, computer expert, testifying, expert, testimony, copyright infringement, patent infringement, trade secret, expert report