The following 19 steps will help guide the expert in preparing for testimony at a hearing or trial, even if the expert has not had the opportunity to prepare with counsel's assistance.

Beginning these steps presupposes that the expert has done everything right to this point; that is, engagement, investigation, preliminary report, discovery and final report have all been accomplished successfully. Only final trial preparation and trial remain.

Evidence testing, observations and results come next, followed by the expert's conclusions, opinions and reasoning. The expert should decide when visual aids and models will most effectively illustrate his testimony.

The expert should decide which of the exhibits are to be enlarged or set up for slide or overhead projection. The exhibits should be ready for presentation. If the expert plans to sponsor a number of documents, an accurate exhibit list should be prepared. The expert should include enough copies of all exhibits for the expert, the court or hearing officer, and each of the parties represented at trial. The expert must make certain that the experiments and demonstrations work every time.

1. Decide on the order of proof.  Consider how the assignment and report may best be presented. Usually, identifying questions will come first:
   • Who are you?
   • What was your assignment?
   • What did you do?
   • How did you do it?
2. Refine the testimony.  The expert should spend time summarizing the research, testing, findings, conclusions and opinions. Practice delivering the testimony to neighbors, friends and family members. Is it clear? Does it make sense? Do others understand it? Are they persuaded? If others do not understand or are not persuaded by the practice testimony, the expert should refine it.
3. Examine the exhibits and the venue.  If the case involves a place or tangible objects that are reasonably accessible, the expert should inspect it/them one last time before trial. If the expert has access to the opposition's visual aids or expert reports, the expert should review them. If necessary, the expert should contact the engaging attorney for assistance in obtaining access to these items.
4. Obtain advance approval of any demonstration items.  The expert may need counsel's assistance to obtain advance approval to use demonstrations. These items should be disclosed to opposing counsel before trial, even if this requires contacting the engaging attorney for assistance.
5. Stage the testimony.  The expert should become familiar with the trial setting. If possible, visit in advance the place where testimony will be taken. In particular, the expert witness should determine the location of electric outlets, open walls or projection screens and how visual aids will be projected. Will an extension cord be necessary? The expert should ensure that charts and visual aids can be seen clearly from important positions in the room: the judge's bench and the jury box. The expert should check the equipment and prepare for emergencies such as power failure or bulb burnout.
   It is also a good idea to review testimony tips and guidelines at this time (see Module 8: General Testifying Tips).
6. Review the discovery response.  The expert is usually provided with copies of interrogatories the expert helped to answer or draft. The expert should review them before trial as well as the review tests, examinations and pretrial preparation, all of which were the subject of the formal discovery response. The expert should pay particular attention to the transcript of deposition and the depositions of concurring and contravening experts. Study all of these documents for their strong and weak points, which will help the expert anticipate the cross-examination.
7. Anticipate any evidence problems.  The expert should examine any documents or tangible items the expert expects to sponsor as a testifying witness. Are they technically trustworthy? Do they need only minimal explanation to be understood? Who prepared them? If they were prepared by others, will they be admissible in the ordinary course of the expert's professional experience? Are they reliable? The expert witness should develop an alternative plan if the items expected to be offered into evidence are rejected. The attorney who engaged the expert will appreciate any observations about motions to limit or accept evidence.
8. Check any technical terminology.  The expert should consider use of a glossary if testimony will require the use of technical terms. This will build credibility, assist the teaching process, and enhance the expert's position as reliable and believable. Obtain approval to use the glossary from all counsel in advance. If permission is denied, definitions can be written on a flip chart or chalkboard during testimony.

9. Structure and organize the testimony. The expert should outline the main points of the testimony, building from the initial strong points to any weaker points in the middle, and concluding with a strong finish. The trier of fact will determine the expert's level of confidence, competence and credibility by how well-organized he appears on the witness stand. The testifying expert who has materials in neatly arranged and well-organized notebooks creates a professional and competent presentation.

   The notebook should include:

   • The expert's report.
   • A summary of the data.
   • Answers to interrogatories that relate to the testimony.
   • The expert's discovery deposition.
   • The subpoena that commanded the expert's appearance at trial.
10. Prepare the exhibits and demonstrations.  Whatever exhibits the expert needs should be orderly and easily accessible. They should be filed by date, witness or party, and subject matter, and cross-indexed for easy access. If necessary, the expert can use computer-assisted filing.
11. Meet with other experts.  The benefits of consultation with other experts involved in the case have been discussed. A meeting of the experts must be approved by counsel, so check with them first. This meeting is of benefit to the expert whether or not counsel attends.
12. Obtain instructions that bear on testimony.   If the matter is to be tried before a jury or commission that is subject to legal instructions, the expert should review the instructions as they relate to testimony. Knowing what legal instructions the fact finder will receive allows the expert to tailor testimony to meet legal tests and requirements. The expert should consult with the proffering attorney to obtain these instructions.

13. Resolve scheduling problems.  The expert must know when and where to testify. Trials and hearings are sometimes delayed by sickness, unavailability of witnesses or emergencies. If the attorney has not informed the expert of whether and when he will testify, the expert should call the clerk, the judge of the court, or the court secretary to determine the schedule.

    The expert should prepare a schedule addressing these questions:

    • When will the materials arrive?
    • How will they get there?
    • When will the expert arrive?
    • When might the expert be called to testify?
    • How long is the expert likely to testify on direct examination?
    • How long might cross-examination last?

    Finally, the expert should discuss with counsel whether or not it is necessary to remain present before or after giving testimony.

14. Respond to subpoena to appear.   It is better for the expert to be subpoenaed rather than volunteering to appear for trial. Being subpoenaed enhances the expert's independence and credibility.
15. Select appropriate clothing.   The expert should dress conservatively and appropriately. Avoid flashy jewelry, accent handkerchiefs or scarves, dark sunglasses, and obviously expensive or provocative clothing.
16. Transport the materials.   On a complicated case, the expert's materials may consist of numerous files, boxes, experiments, models, mockups, drawings and other bulky items. The expert should determine well in advance who will move the materials, and how and when that will be accomplished.
17. Anticipate the opposition's plan.   The expert should try to gather information about the facts, law and positions the other side is relying on. Analyze the opposition's likely strategy and anticipate how the expert would cross-examine himself or herself on the facts and evidence of the case.
18. Charts and visual aids.   Charts are best presented in simple black letters or numbers on a white background and with no dark borders. Use yellow highlighter for emphasis. See Module 3: Importance of Case Preparation, Topic 10: Visual and Demonstrative Aids.
19. Key concepts.   Keep in mind the four key concepts that underlie all effective expert testimony:
    • Credibility: Be conservatively dressed, organized and well-prepared, and follow procedures based on the scientific method.
    • Teaching: Clearly communicate the techniques used, results of any testing, and the conclusions drawn.
    • Demonstration: Use visual aids effectively.
    • Simplicity: Focus on key points, do not volunteer information, and be succinct.

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