Evidence and Expert Testimony Part 12

Counsel should instruct experts to avoid technical terms whenever possible.
If the use of a technical term is necessary, the expert must define it clearly upon first mention.
Definitions provided must align with those found in recognized technical dictionaries and encyclopedias, ensuring consistency and reducing vulnerability during cross-examination.

Experts are required to be knowledgeable about the latest editions of standard treatises related to their subjects.
It's beneficial for them to be familiar with their own related publications as this could be discussed or read into evidence during examination-in-chief.
Experts should brace for cross-examination using these sources, emphasizing the importance of preparation in anticipating possible questions.

Experts can offer additional information regarding their specific topics, which may be crucial for case analysis.
They help assess the strengths and weaknesses of the opposing counsel's case.
They are instrumental in the preparation for cross-examinations of the other side's experts.

Experts must refrain from answering questions that lie outside their specialized fields.
- For example, a witness might respond, "I'm sorry Ms. Smith, but what you are asking does not fall within my area of expertise."
Offering opinions outside of one's expertise may lead to adverse impacts, akin to being exposed during cross-examination.

Experts often present their evidence in an arrogant manner, which may not respect the jury's intelligence.
It is recommended for experts to simplify their language to enhance understanding without being patronizing.
Using visual aids (diagrams, models, charts) to clarify complex evidence is highly encouraged.

If a hypothetical question is to be used, it must be prepared in advance and discussed thoroughly with the expert.
Counsel should explain to the expert how they will frame questions regarding the expert’s opinion and any legal concepts that differ from scientific or medical ones.

Counsel should generally insist that witnesses be formally qualified as experts, unless:
- The witness has marginal qualifications but can effectively communicate their expertise.
- The opposing counsel's expert has superior qualifications and the suggestion has been made to streamline the process.
If such a suggestion arises in court, it is essential to articulate the reasoning for retaining the witness’s qualifications to the judge and jury.
Example of expressing this:
- "Your Honour, in light of Dr. Corvin's extensive experience, and due to the relevance of her expertise, we submit that it is critical for the jury to hear her qualifications."

In cases where both sides employ paid experts, typically, it is not beneficial to mention the payment during examination-in-chief.
If there is a likelihood that the opposing side will raise payment during cross-examination, better practice is to disclose it proactively in evidence-in-chief.
- Example of handling payment questions in court:
- Q: Dr. Corvin, did you charge a fee for your work in this case?
- A: Yes, I did.
- Q: How was that fee calculated?
- A: I charge $400 per hour based on the time spent on the case.
- Q: What was your total fee in this case?
- A: $8,000.
- Q: Has your fee been compensated?
- A: Yes, it was settled a while ago.
- Q: Are you being compensated for your court appearance today?
- A: Yes, I am compensated at my standard hourly rate.

There is no absolute structure for examining an expert in chief; however, a commonly used order includes:
- (a) Introduction
- (b) Training, study, or experience
- (c) Expert’s opinion
- (d) Reasons supporting the opinion
Variations in structure are acceptable:
- The expert may first discuss reasons for their opinion, followed by the opinion itself, or integrate the opinion within the discussion of their credentials.
The key is to structure the evidence effectively to maximize impact on the jury.

As the expert is sworn in and seated, counsel must address critical questions from the jury:
1. Who is this person?
2. Why is this person here?
3. Can this person be trusted?
Introduction method example:
- Q: Dr. Jones, your first name is Marion?
- A: Yes.
- Q: You are a medical doctor?
- A: That's correct.
- Q: You work at St. Vincent's Public Hospital in Sydney?
- A: That is correct.
Alternative introductions may personalize the witness:
- Q: Dr. Jones, please introduce yourself to the jury?
- A: My name is Marion Jones. I am an orthopaedic doctor at St. Vincent's Public Hospital in Darlinghurst.

The next phase is establishing the expert's role:
- Q: Dr. Jones, do you know Mohammad Sharef?
- A: Yes.
- Q: How did you come to meet him?
- A: He became my patient in May last year at the hospital.
An alternative and direct approach would be:
- Q: Dr. Jones, you were the orthopaedic specialist treating Mr. Sharef in May last year?
- A: Yes.
These introductory strategies are designed to build rapport and credibility with the jury, framing the expert as relatable and trustworthy.