Initial Considerations to Make When Conducting an Investigation as an Expert Witness
Expert investigations can vary dramatically in subject matter and scope. An automotive accident investigator may have to spend time at an accident site taking photographs, and follow up with interviews. A psychiatrist may conduct interviews but without having to leave her office. A computer specialist may have to make copies of hard drives and correlate the information found on those drives with the aspects of a crime.
What these various expert witness roles have in common is the mountains of documents to review about the case. The lawyer hiring you will usually begin with a brief synopsis, followed by some documents to read and possibly a summary. While this all could be helpful, it may represent only part of the total discovery data. Moreover, the summaries may contain oversimplifications or even errors.
Do not rely on attorney summaries of documentation. You must review documents of importance and relevance to draw opinions and form opinions based on their contents. Your responsibility, as you ramp up your investigation, is to decide which documents and evidence to review directly. Ask for any indexes that will help you sort through the contents of the war room; go to the war room and decide which documents to review. If it looks like a war zone, it could be that neither labels nor indexes exist. In this case, wade through the documents to make decisions about them, and when you use them, keep printed records of the documents by both name and date stamp identifications.
Rule 703 of the Federal rules of Evidence spells out three classes of data or facts that an expert can Consider and on which he can base his opinions:
A. Things you figure out or see directly, before the trial.
B. Things you figure out or see directly, at the trial.
C. Other data or facts that you hear about or learn about, as long as they are usually relied on by professionals in your particular field.
The "things you find out or see before the trial" can cover what you read, any discussions you have with people at accident sites, in hospitals, at job sites, or even with technical people who wrote software or who ran machinery. It can also contain the results of well-defined research you've done that is on point to the subject of the case. These activities generally happen well before the trial. The rest of this lesson focuses on what you may do, and how you may collect this evidence and information.
Regarding the second part of Rule 703, you will occasionally figure out something new at the trial. Occasionally, other witnesses may introduce evidence on the witness stand for the initial time. Some states require that you hear such evidence directly, which means that you might have to sit in the trial for hours or days before your testimony, listening to others testify.
The third part of Rule 703 has to do with facts that are "usually relied on by experts in your particular field." If professionals in your field reasonably rely on outside labs, investigators, or assistants, then you can use facts they gather as part of the basis for your opinions.
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