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Retaining a Business Resumption Planning Expert Witness (Part 2 of 2)

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It may seem wrong, but it's a fact: In court, being believable is more important than being knowledgeable. Leo A. Wrobel and Sharon M. Wrobel conclude their series on choosing an expert witness by examining traits that are as important as subject expertise, but much less objective.
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In part 1 of this series, we stated that while lawyers are important in any legal action, expert witnesses also play a major role in the U.S. judicial system. In fact, expert testimony presented in the course of a legal proceeding can significantly enhance the prospects of plaintiffs or defendants, and radically change the course of a case. Both plaintiffs and defendants make extensive use of expert witness testimony, so engaging the right expert is no small matter. This article imparts additional tips to ensure that you're successful.

Part 1 explained that one of the foremost factors in choosing an expert witness is his or her ability to digest and assimilate complex technical facts, draw a conclusion, and present it in an understandable way to non-technical people. In addition to knowledge, an expert witness must possess a number of other desirable characteristics. This article concludes this series with a discussion of these other traits of success for a potential expert witness, what you'll be expected to pay for the expert's services, and what to do if you are called to deliver expert testimony.

Communications Skills

Besides knowledge and "book smarts," there are many other things to consider when selecting or retaining an expert witness. For example, what if your expert cannot communicate his or her knowledge to a non-technical judge or jury? What if he's an exceedingly poor public speaker? What if he freezes under the pressure of an intimidating lawyer under cross-examination? What if the judge or jury simply doesn't like your witness? Any one or more of these negative traits can prejudice your case.

If there's a possibility that you could be called as an expert witness in the future, or if you want to offer these services, do everything you can to hone your communication skills. Join Toastmasters, accept public speaking engagements, lead high-pressure meetings within your organization. Such experience can keep you from freezing under pressure in the potentially hostile venue of the court. (Any of these steps can also enhance your professional career in other ways.)

If you're looking for an expert witness, obviously you must check out the person's background, experience, degrees, licenses, certifications, employment history, and so on. If he or she has previously testified for other organizations or law firms, get details and references—you particularly want to know about the expert's ability to communicate to an arbitration panel, judge, or jury.

From a review of the potential candidate's background, you can pick up on a few indicators of ability to communicate:

  • Is the potential witness well known on the speaking circuit? That's an indication that she's accustomed to speaking in front of large crowds.
  • Has she assisted law firms in the past? Chances are that she's comfortable under the pressure of the courtroom.
  • Is her work published? If so, she knows how to organize a pattern of thoughts into coherent and concise conclusions.
  • Does her job description specify an executive management consultant position? Look for this as an indicator of ability to communicate with executives.

The last point above might seem to contradict what we said earlier. A good witness must be able to "dumb down" technical details for the sake of non-technical judges or juries. But your executives, legal department, or both will probably have to approve expenditures for hiring the expert witness, as these kinds of resources are pricey. The ideal candidate will be able to present information in any forum—for your upper-level staff as well as in the courtroom.

Once the candidate has passed this first hurdle, interview her by phone or in person. Again, pay particular attention to her ability to communicate her expertise. If you're satisfied with her abilities in this area, look for the other traits discussed in the rest of this article.

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