Effective Expert Testimony takes readers from the initial decision to hire an expert to the search for the right expert all the way through the various pretrial and trial activities for which experts and attorneys must be prepared. The book emphasizes many opportunities for persuasion when conducting direct examination of the expert, and underscores the work that is required to control the expert compared to the lay witness-on cross-examination. The authors look in detail both at the careful steps that must be undertaken in deposing experts and at the tools available for cross-examining the expert.
According to Malone and Zwier, to present and to oppose experts effectively the attorney must develop and use a number of skills: attention to detail, patient follow-up, careful organization, and dealing with ego. Throughout the book, the authors emphasize the need to treat the expert—consulting and testifying—as an integral part of the trial team. The shape of the case, as determined by the complaint, answer, and early discovery, reflects the attorney's judgment and the expert's knowledge. The authors stress that attorneys must understand the Supreme Court's recent Daubert trilogy so they can help, or even direct, the court in its gatekeeping function of keeping unreliable expert testimony out of the record.
This third edition includes new material on changes in the Federal Rules of Civil Procedure regarding discovery of communications between counsel and expert; changes in the ethics rules regarding experts; and major changes regarding experts and the Confrontation Clause in criminal cases. This edition also includes new Supreme Court decisions applying Daubert and Kumho Tire and includes a new chapter on cross-examining expert in an international commercial arbitration.