Do you really need that expert witness?

Pretrial expert witness preparation follows the familiar script of identifying the experts, working up reports, making required disclosures, taking and defending depositions, and motion practice. Presenting the best expert case at trial, however, involves designing a unique plan and oftentimes deviating from familiar patterns. In some instances, this will mean benching an expert that endured the pretrial tasks and in whom the client has invested substantial fees.

Although affirmative expert testimony may be necessary in some cases to fulfill an element of the claim or defense, attorneys can become too reliant on expert witness testimony to shore up an otherwise unpersuasive trial presentation weighed down by an overlong witness list. When developing an expert case, the possibility of not hiring an expert at all or pulling an already retained expert prior to trial should always be on the table. The following are a few examples of strategic reasons to keep an expert off your witness list or not call her to the stand.

When the absence of an opinion speaks louder than the opinion itself. When an adversary presents expert testimony, an advocate may worry that proceeding without a counter-expert is too risky. There are situations, however, when choosing to leave the opposition's expert unchallenged or keeping your unchallenged expert off the stand is the better strategy.

Consider a trademark infringement claim where likelihood of confusion is an element. Both parties will likely have the strong impulse to commission an expert survey to prove whether the public is likely to be confused by the marks at issue, but not presenting a survey may be more effective. For example, where the plaintiff has the burden to prove confusion and presents a significantly deficient survey, simply crossing the plaintiff's expert without presenting a competing opinion avoids a battle of the experts that could distract from that plaintiff's failure to meet her burden. More inviting, where the plaintiff fails to conduct a survey and instead plans to use cross-examination or a rebuttal expert to make its case, pulling the defense expert blocks the rebuttal and leaves the plaintiff unarmed to convince the trier of fact on the elements.

To avoid witness overload. Trials with many experts tend to be long trials and (despite this readership's enthusiasm) boring trials to a jury. Pulling an expert witness can shorten and focus your case. Before trial, there can be strategic advantages or fact-finding reasons to pursue a broad approach to expert testimony. Experts on topics like the structure of the insurance industry, the retail banking practices of a specific community or the internal workings of a federal agency can provide useful context at the discovery and summary judgment phases even if they do not ultimately or specifically relate to the elements of the claims or defenses. Disclosing experts on specific, less obvious topics -- handwriting, paper and ink composition, cartography -- can also provide additional avenues of attack on the opposition's case and send the adversary scrambling to rebut unanticipated arguments.

However, when trial arrives, one should revisit the importance of each expert anew and focus intently on what testimony will be useful to jurors. Naturally, the decision to cut an expert is easier if the expert was damaged in pretrial discovery. Even unblemished experts should be left out of a trial, however, if the testimony is cumulative or tangential, or the witness list is simply too long. The strongest case can risk the appearance of being too dependent on "hired guns" or diluting the effect of valuable testimony from another witness who becomes harder for the factfinder to remember after a lengthy trial.

When another witness can present the same information. The rules allow a party employee to be an expert witness, but the employee may not appear that way to a jury -- a perception that can be beneficial. Consider damages. In a typical arrangement, a consulting expert or team of consulting experts works through damages scenarios that are then presented through a testifying expert who is often an economist or forensic accountant. Sometimes, there is no reason that the witness needs to be a hired, expert witness rather than an employee with the requisite qualifications. For example, a company's chief financial officer or controller often has similar academic credentials to many damages experts and comes preloaded with first-hand knowledge of the company's business. It is worth considering whether an employee's testimony about the decisions and assumptions that went into a damages analysis -- what products were included in the analysis, sales expectations, etc. -- could be more credible than that of a paid witness.

In other situations, utilizing an expert witness with specialized knowledge is unnecessary because the expert is effectively being used only to present voluminous or complex data. In such instances, a properly prepared summary witness can be an alternative that cabins the risks of expert cross-examination on matters distracting to the litigant's purpose in presenting the testimony, such as the expert's testimony in other cases, select statements in the expert's writings and the information not provided to the expert.

A seasoned and celebrated trial lawyer once described an expert witness as "someone who was not there, but for a suitable amount of money will tell you what it must have been like." Many jurors see expert testimony that way. So, for trial, why not take a deliberate pause and, with a mind divorced from the pretrial chores surrounding the expert witness who has been hired and deposed, carefully consider whether each expert's testimony is necessary or even helpful to present to the factfinder?