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Watch Out for Underprepared Witnesses in Litigation

Most witnesses, even seasoned experts, enter trial with a clear story and narrative in their head. However, after the lengthy questioning of direct examination, the scrutiny of opposing counsel under cross-examination, and the pressure of the witness box, many expert witnesses can have their testimony broken down into confusing mush.

Witness testimony is much more than a simple recitation of the facts. Witnesses, and particularly expert witnesses, need to understand the story the attorney is trying to tell and how their testimony fits into that narrative. A basic understanding of where a witness's testimony fits into the case will result in much clearer testimony, a better ability to hold up under cross-examination, and a more accurate depiction of the case facts. When witnesses are led astray during cross it is easy to lose focus of what actually happened and what is important. A clear understanding of how their testimony fits into the case will help a witness stay on track and provide clear and accurate testimony.

With expert witnesses, it is even more crucial to ensure they understand their role and the role of their testimony. An experienced litigation attorney will be knowledgeable on what questions can be expected on cross and can prepare the witness for any potential hurdles they will need to overcome. Often, large egos and a desire to please the attorney may lead an expert to speak beyond their qualifications, risking their overall credibility in the process. As a result, experts should avoid overcomplicated or excessively technical answers when testifying and should try to engage the jury rather than "teach" them.

It is absolutely crucial to have a competent, experienced attorney that will prepare witnesses well in advance of trial and continue to prepare the witnesses up to trial. Experienced attorneys are able to provide critical insight into the testimony that is crucial to the case and can make clear to the witness the role they play in the case. The Loftin Firm has a number of litigation attorneys with ample experience in preparing both expert and lay witnesses for trial and preparing a strategy for incorporating witness testimony into the client's story.

Liam Perry is an Associate Attorney at The Loftin Firm. For questions relating to this blog post or any other California real estate, land use, corporate, or estate planning matter, contact The Loftin Firm at (760) 814-9649. 

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The Loftin Firm, P.C.
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Carlsbad, California 92008-4713

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