The Expert Witness

AuthorDaniel Small
ProfessionIs a partner in the Boston and Miami of ces of Holland & Knight LLP
Pages173-181
In an age where knowledge has become increasingly specialized, the
importance of experts in the courtroom has increased signicantly. Expert
witnesses often play a vital role as witnesses in cases requiring the scien-
tic evaluation and interpretation of facts that are beyond the capabilities
of laypersons. Expert witnesses can also serve to advise the lawyer in the
investigation of technical cases and guide the lawyer through the discov-
ery process.
Expert testimony, in federal court, is based upon Rule 26 of the Federal
Rules of Civil Procedure, which among other things, provides for disclosure
of experts (Rule 26(a)(2)(A)), providing a written report (Rule 26(a)(2)(B)),
and depositions of experts (Rule 26(b)(4)(B)). However, at a more basic
level, counsel’s role is really based on an old slogan for the Syms clothing
store, “An educated consumer is our best customer.We as lawyers have
to be educated consumers of this type of information.
Three General Rules
While experts have proven to be invaluable in the courtroom, many law-
yers underestimate the amount of preparation required to maximize their
contributions. The Microsoft antitrust case illustrated some of the basic
pitfalls that could have been avoided if both the lawyers and witnesses had
been adequately prepared. In that case, high-priced experts oundered and
were skewered with their own words, and a critical videotaped computer
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Chapter 30
The Expert Witness
Small_PrepWitness_20140403_13-27 Second Pass.indd 173 8/12/14 10:20 AM

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