What advice do judges give to expert witnesses about how to be a more effective expert?

Judge Russell Canan, speaking at the SEAK National Expert Witness Conference gave this advice to experts.


a.         Review background and experience with attorney.

b.         Attorney should review entire case with expert prior to the expert completing the 12(b)(6) statement or being deposed.

c.         Expert should review all records and information, which are available from the original source.

d.         Expert should understand how the expert’s testimony fits into the party’s theory of the case.

e.         Have attorney review questions the attorney intends to ask.

f.          Examine the exhibits the attorney intends to use during the expert’s testimony and suggest changes if any are needed to facilitate the testimony.

g.         Prepare additional exhibits, if needed, to assist the fact-finder’s understanding of the expert’s testimony, and review with the attorney.

h.         Turn over to attorney all notes and reports produced in preparation for testimony, including all raw data, which serves as the basis for test results.

i.          If prior testimony was presented, e.g., deposition, etc., review before testifying at trial.

j.          Fully discuss with attorney any weaknesses in the case from the expert’s point of view and any responses to questions, which may assist the adversary.

k.         Have attorney review anticipated cross-examination with expert.


Presentation of Testimony:

a.         Have all notes and reports with you while testifying, but do not look at them without the Court’s permission.

b.         Speak to the fact-finder (jury or judge) by turning and talking to the fact­ finder when responding to questions; do not just talk to the attorney asking the questions.

c.         Fully outline background and experience.

d.         After giving your opinions, explain why your opinions are supported by the facts in the particular case.

e.         Speak clearly and slowly.

f.          Use layman’s terms when presenting your testimony; do not try to impress by using big words which the fact-finder will not understand.

g.         When technical terms have to be used, explain them in layman’s terms.

h.          Listen to questions and only respond to the questions actually presented.

i.          Where possible, explain your testimony with the use of exhibits, e.g., diagrams, charts, etc.

j.           Do not appear to be partisan or defensive; appear objective.

k.          Do not appear hostile or argumentative during cross-examination.

I.          When concessions must be made, make them. Doing so will add credibility to the other testimony you present.

m.        Comply with the judge’s rulings. If the judge is wrong, the error will be corrected on appeal.

Judge Susan Burke will be speaking at this year’s conference on May 3-4, 2014 in Orlando, FL.

The Biggest Mistakes Experts Make and How to Avoid Them: A View from the Bench

The Honorable Susan Burke

Judge Susan Burke will identify the most common mistakes expert witnesses make and will explain how to avoid them. She will discuss demeanor, presentation, communications skills, personality, and the maintenance of integrity, credibility and reputation. Judge Burke will offer practical suggestions that experts can adopt to improve their effectiveness.

Judge Susan Burke has served as a state district court judge in Minneapolis, Minnesota, since January 3, 2005. Judge Burke routinely deals with expert witnesses. She handles approximately 350 civil cases each year. Case types include medical malpractice, legal malpractice, personal injury, product liability, employment, and contract disputes. Judge Burke’s criminal cases have primarily involved complex economic crimes and drug crimes. She has observed countless hours of expert testimony. As a federal prosecutor, she prepared and presented expert testimony in almost every case that went to trial and litigated Daubert (expert witness) issues for the Federal Bureau of Investigation. She has presented on expert testimony in the past. She has been an active trial advocacy instructor. Prior to her election to the bench, Judge Burke served as an Assistant United States Attorney for the District of Minnesota from 1994-2004.  From 1992-1994, she worked as a Trial Attorney for the United States Department of Justice, Civil Division, Federal Programs Branch in Washington, D.C. While at the Department of Justice, Judge Burke was the first to litigate a case interpreting the John F. Kennedy Records Collection Act of 1992.  She defended the FBI when Jimmy Hoffa’s daughter sued the FBI to close its investigation of Jimmy Hoffa’s disappearance.  Judge Burke also litigated nine cases against Adam Walinsky and Ann Coulter. Judge Burke was recently inducted into the Hanover College Athletic Hall of Fame for volleyball, basketball and softball.  She was a two-time Academic All-American nominee, and was the only student in the college’s history to graduate with 12 varsity letters.