Critical: Pay Before Testimony
Always pay your expert witness appraiser before they testify. This single practice protects your case from devastating credibility attacks.
Why This Matters:
- Prevents opposing counsel from arguing the expert was coerced by payment being withheld
- Protects expert's credibility and objectivity in front of the jury
- Avoids ethical violations under Florida Bar rules and similar state regulations
- Prevents court from excluding or limiting expert testimony
- Eliminates bias-based cross-examination opportunities
Proper Payment Structure
Structure expert compensation to maintain credibility and avoid ethical pitfalls
DO: Acceptable Payment Methods
- • Fixed hourly rate or flat fee
- • Payment made in advance or on regular schedule
- • Clear written agreement specifying payment terms
- • Payment independent of case outcome
- • Payment independent of favorable testimony
DON'T: Prohibited Payment Methods
- • Contingent fees (payment only if you win)
- • Payment based on favorable testimony
- • Withholding payment until after testimony
- • Payment tied to property valuation amount
- • "Success bonuses" based on verdict
Legal Precedent: In Mushroom Transport Co., the court precluded expert testimony unless compensation method was altered. In Gediman v. Sears, the court gave a special jury instruction stating "the higher his opinion, the more he would be paid."
Pre-Trial Preparation Checklist
Critical timeline and procedural requirements for expert witness testimony
Timeline Requirements
- 90 days before trial: Expert disclosures must be made (FRCP 26(a)(2)(D))
- 30 days before trial: Deadline for objections to expert testimony (FRCP 26(a)(3)(B))
- Ongoing: Supplement any material changes to disclosures (FRCP 26(e))
Qualifying Your Expert
The data and methodology your expert used are the most vulnerable aspects of testimony. Opposing counsel will attack the reliability of methods used.
- • Review FRE Rule 702 (when expert testimony is necessary)
- • Review FRE Rule 703 (basis of expert opinion - Daubert factors)
- • Discuss potential pitfalls in methodology beforehand
- • Ask if there are multiple ways of conducting the analysis
- • Identify any controversy surrounding test methods
Direct Examination Strategy
- Avoid absolutes: Don't use "in all cases" or "every time" - leaves room for impeachment
- Remain impartial: Don't frame answers to appear partial (bias can disqualify expert)
- Simplify technical terms: Brainstorm better ways to present complex information to jury
- Beat them to the punch: Ask anticipated cross-examination questions during direct
- Open-ended questions: Allow expert to elaborate on important points
Cross-Examination Preparation
Prepare your expert for aggressive questioning and credibility attacks
Handling "Yes" or "No" Questions
Opposing counsel will frame yes/no questions to weaken testimony. Prepare your expert with these strategies:
- • If question can't be answered simply, expert should say so
- • Use "in some circumstances" if that's accurate
- • Don't mislead by forcing yes/no when answer is "sometimes"
- • Explain that you're answering in the most accurate way possible
When to Say "I Don't Know"
Acceptable:
- • Questions outside scope of expertise
- • When you genuinely don't know the answer
- • Better than guessing or misleading
NOT Acceptable:
- • Questions about basis of your opinion
- • Questions about your methodology
- • Core questions within your expertise
Avoiding Credibility Traps
Never Use These Phrases:
- • "I just..." (sounds uncertain)
- • "As far as I know..." (sounds incomplete)
- • "I think maybe..." (sounds unsure)
- • "Probably..." (lacks confidence)
These phrases are unconvincing and weaken credibility. Emphasize to novice witnesses they must avoid them.
If Opposing Counsel Cuts You Off
- • Take liberty of saying what needs to be said if testimony is important
- • State in next answer that previous question wasn't completely answered
- • Don't let important portions of testimony be left out
- • Maintain composure and professionalism
Additional Best Practices
For Attorneys
- • Practice difficult cross-examination questions beforehand
- • Discuss attorney-client privilege (doesn't extend to witnesses)
- • Explain impeachment grounds (character, prior convictions)
- • Explain difference between legal merits and factual issues
- • Review all methodology and data sources in detail
- • Ensure expert has reviewed opposing expert's report
For Expert Witnesses
- • Bring complete workfile and all supporting documentation
- • Review your report thoroughly before testimony
- • Be prepared to explain methodology in layman's terms
- • Dress professionally and maintain composure
- • Answer only the question asked - don't volunteer information
- • Pause before answering to allow for objections
Need an Expert Witness Appraiser?
Black Horn Valuations provides experienced, credible expert witness testimony for litigation matters.