Jacob Parks, J.D., CFE
All attorneys who use expert witnesses in litigation will tell you that the last thing they want to worry about is an expert who is not prepared. My first experience with an ill-prepared expert was, fortunately, during a mock trial tournament in law school. These events largely relied on the competitors’ fellow students to volunteer to serve as fact and expert witnesses. One mock trial case that I competed in involved medical malpractice and required an expert witness to testify to technical matters. I recruited another student to be my expert witness and explained the facts of the case to him. However, I told him that to really understand and retain the nuances of the case, he would need to study the case documents. He assured me that he would.
A couple of weeks later, we held the mock trial, and my expert witness tanked. During my own direct questioning, it was clear that he had not committed many of the crucial details to memory. I was able to refresh his memory somewhat, but my opponent saw weakness. The cross-examination was so bad that it was awkward to watch. My witness got flustered when he didn’t know an answer, was argumentative, and generally looked like he had dropped out of medical school during the first year. Perhaps I am being too hard on him — he was just a volunteer after all — but I thought he should have known better. I tried to rehabilitate his testimony in my redirect, but the damage was done. Let’s just say that I was watching the final mock trial round as a member of the gallery.
As for my expert witness? Suffice it to say that no one used him as an expert witness again. While I can talk about this story jokingly, in actual litigation, it is imperative for expert witnesses to be prepared. This preparation includes knowing both the facts of the case, as well as the procedural rules and processes of litigation.
The ACFE’s new online course, The CFE as an Expert Witness, is designed to help you be a prepared, confident and credible expert witness. Learn about the legal standards you must meet, the traits of an ideal expert witness, and how to testify effectively during depositions, direct testimony and cross-examination.
Don’t suffer the fate of my expert witness – add these skills to your repertoire and be prepared for your day in court.