1972, January, Pg. 13. Direct Examination of the Expert.

• Author: by Margaret Bates Ellison

1 Colo.Law. 13

Colorado Lawyer

1972.

1972, January, Pg. 13.

Direct Examination of the Expert

131972, January, Pg. 13Direct Examination of the Expertby Margaret Bates EllisonMargaret Bates Ellison, Denver, is a practicing attorney specializing in trial of personal injury and professional liability cases.Preparing to Question the Expert

Study of FactsKnow the facts of your case. "Facts" in this instance means all the evidence pertinent to the expert's testimony which you intend to produce at the trial and all the pertinent evidence which can be produced by any other party to the suit. Study all pertinent information in the documentary material you have accumulated in your case file or which you have examined in the course of discovery proceedings. This may include reports, written statements, original records, transcripts of recorded statements and depositions, written interrogatories and requests for admissions and answers thereto, photographs, correspondence, diagrams, drawings and contractual documents.

Obtaining the Expert WitnessSome expert witnesses are chosen and some are thrust upon you. In some cases you will want to produce the testimony of both an expert who participated in the happenings of the case and an expert who expresses an opinion based on his investigation and a given set of facts. In some cases you will have only one or the other type of expert witness.

When selecting an expert witness, a primary source of information is an association or society of which such an expert

14is almost certain to be a member; an obvious example is the State Medical Society as a source of such information about a doctor of medicine. If you are seeking an expert in a particular branch of a profession or business, a national organization to which such an expert probably belongs can give you names and addresses of persons in your locale who are members of the profession confining their work to a special field.

Attorneys who may have had occasion to use such an expert as the one you seek are another source of information, and some associations of lawyers maintain lists of experts in various fields.

Sometimes a person with whom you are acquainted who is engaged in the business or profession from which you are seeking an expert to testify will guide you to another person who is qualified to testify, although he himself is not an available or suitable witness.

Finally, of course, you may be personally acquainted with some local experts in certain fields.

In any case, endeavor to get a real expert whose qualifications and integrity are unimpeachable.

Acquiring Technical KnowledgeTry to become as expert as the expert concerning the particular segment of technical, medical or scientific knowledge involved in your case. This can be accomplished by reading books and articles by experts on the subject and by conferring with your expert witnesses. If the reading material is too technical for you to understand, your expert witness should be able to give you enough instruction on the particular matter involved to enable you to understand it. If he can't make it clear to you, who are a reasonably intelligent but ignorant layman, get another expert if you can.

Conferring with the ExpertIf the expert has had little or no experience in testifying in a trial, give him instruction in the rudiments of being a "good" witness. (In fact, review of these matters may assist also the experienced testifier.)

Tell him to listen to the question and answer only that question. Tell him to look at the jury and address his testimony to the jury, not to you or any other lawyer who is asking him questions. Tell him to speak clearly and distinctly, not mumbling or firing back his answers with machine-gun rapidity. Tell him to observe whether the jury appears to be understanding what he is saying.

Explain to the expert what is necessary to make an expert's opinion testimony substantive, probative evidence: not absolute certainty, but reasonable certainty...