The Expert Witness

• Author: Daniel Small
• Profession: Is a partner in the Boston and Miami of ces of Holland & Knight LLP
• Pages: 173-181

In an age where knowledgehas 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

173

Chapter 30

The Expert Witness

Small_PrepWitness_20140403_13-27 Second Pass.indd 1738/12/14 10:20 AM