As mentioned in our last blog post, human beings are unpredictable. In litigation, you can never really know what to expect when working with eyewitnesses, expert witnesses, and even your own client.
There are, however, some pretty basic elements of how NOT to use an expert witness, of which I was reminded of after reading about Anderson Silva’s one year suspension from MMA fighting for failed drug tests. Even ESPN called the disciplinary hearing “one of the most ill-conceived, poorly prepared, ridiculous explanations for a failed drug test this sport has ever seen.” Ouch! Let’s take a look at what went wrong and how you can work to avoid similar mistakes:
- DO ensure all of your parties, including your expert witness, have a clear recollection of the facts of the case and can discuss them. If you’re going to be in court to testify about the specific actions that did or did not take place around a specific event, everyone should be on the same page about the Who, What, When, Where, Why, and How of their involvement in the case. You can start your case intake by asking anyone, including your expert witness, those six basic questions and going from there.
- DO NOT let your expert witness come to court empty-handed. The expert witness in the Silva case, Paul Scott, did not provide any material or hard evidence with his testimony. He failed to bring any documentation about his findings from a drug test. Unless the drug test was all conversational (which would render it somewhat unscientific!), there is no reason for this. Drug tests involve blood work, lab tests, personal health information (which can be redacted amid privacy concerns), and the like, all of which are recorded with the results then provided digitally or on paper. There is no reason to not have any documentation from a drug test. Without documentation, how is Paul Scott’s testimony anything more than hearsay?
- DO NOT let your expert witness participate if he or she is unprepared. This ties into the first point made above, but in the Silva case, the expert witness couldn’t recall what substances Silva was tested for in his drug test. Expert witnesses are located and asked to utilize their professional knowledge and experience for a specific purpose. When your expert witness is unable to verbalize what he or she was engaged to do, what value is the expert witness bringing to the case?
- DO NOT assume that someone is an “expert” without fact checking. Our 21st century world is amazingly diverse. People have taken the phrase “Live your passion” to new depths and created professions in nearly every subject matter humanly possible. There are experts in porta-potties, koi fish, strawberries, fingerprinting, and even (you guessed it) drug testing. While I am not familiar with the credentials of Silva’s expert witness, Paul Scott, his credentials were never mentioned in the ESPN article. In fact, ESPN first referred to him as “…Silva’s ‘expert witness’ Paul Scott”, implying the use of this term as questionable. Your expert witness should bring knowledge, professionalism, and experience to your case, all of which creates credibility.
While some of these points may lie in the back of our minds as obvious knowledge, it is imperative ensure everyone working on the case is reminded of them as well. Your paralegal or case assistant might be so busy with administrative filings that they forget some of these pointers, or assume that someone else has taken them into consideration.
With the help of ECS, we can help you locate a credible expert based on our years of litigation experience and location expertise. If you’re a qualified professional and would like to be a part of our network, we can also help. Whatever your expert witness location needs, send us an email at [email protected] today and let’s get to work!