Experts play an essential role in arbitration, helping arbitrators make well-informed decisions, especially on complex or technical issues.
When utilized effectively, expert testimony can be a game-changer in clarifying issues and bolstering the case. However, there are risks, and if not managed carefully, using an expert can detract from, rather than strengthen, the case.
As an arbitrator, I have found that certain strategies can significantly enhance the effectiveness of expert testimony. Here are three best practices and three common mistakes to consider when using expert testimony in arbitration.
It is common practice to present fact witnesses first, saving expert testimony for the latter stages. However, when experts are explaining technical issues, introducing them earlier in the process can help frame the issues more clearly.
In a complex case involving intricate processes, an expert witness may provide visual aids that are invaluable in explaining the technical aspects of the dispute. Presenting expert analysis early can provide the arbitrator with a clearer context, enabling a better understanding of the case as it unfolds.
Visual aids can be powerful tools in arbitration, especially when dealing with technical or complex matters. Work closely with your expert to create compelling demonstrative aids that will help clarify your points.
These visuals can significantly improve how the arbitrator comprehends and retains information, giving you a better chance to make a lasting impression. When done correctly, this can set your expert testimony apart and give the arbitrator a solid framework on which to base their decision.
One of the most damaging situations in arbitration is when an expert changes their opinion under cross-examination. This can severely undermine your case.
To avoid this, make sure your expert is well-prepared, not only with their primary testimony but also for the possibility of tough questioning. Conducting practice sessions where you simulate difficult cross-examination scenarios can help ensure your expert is confident and consistent in their opinions.
A well-prepared expert can withstand challenging questions without faltering, which will enhance their credibility and strengthen your case.
Lawyers often underestimate the time required for opening statements and the testimony of fact witnesses, leaving little time for expert testimony.
This approach often leads to rushed expert presentations, which can undermine their value to the process. Avoid the trap of having to rush through expert testimony due to time constraints.
You want your expert to be thorough and deliberate, not hurried and incomplete.
Trying to hide unfavorable facts or damaging records from your expert can backfire, particularly when your expert is cross-examined and caught off-guard.
This can severely damage their credibility and weaken your case. Ensure your expert has all the information necessary to present an honest opinion. Full transparency avoids surprises and allows your expert to be well-prepared to address difficult questions head-on.
It is natural to focus on your own expert, but ignoring the opposing expert is a big mistake. Discounting their analysis and findings may give the impression that you have no rebuttal, which could hurt your case.
Instead, prepare thoroughly to counter the opposing expert’s testimony. It will help the arbitrator make an informed decision and enhance your chances of a favorable outcome.
Leveraging expert testimony can be crucial in arbitration, but it requires more than just choosing the right person. With these strategies in place, you can significantly enhance your case and improve your chances of a favorable outcome in arbitration.
Jennifer Grippa is an arbitrator and mediator with Miles Mediation & Arbitration and an arbitrator with the American Arbitration Association.