DOCSLIB.ORG

Basic Trial Techniques for Prosecutors in Impaired Driving Cases | 7 Pre-Trial Preparation

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Basic Trial Techniques for Prosecutors in Impaired Driving Cases | 7 Pre-Trial Preparation BASIC TRIAL TECHNIQUES for PROSECUTORS in IMPAIRED DRIVING CASES National District Attorneys Association 1400 Crystal Drive Suite 330 Arlington, VA 22202 www.ndaajustice.org Nelson O. Bunn, Jr., Executive Director National Traffic Law Center A Program of the National District Attorneys Association www.ndaa.org/ntlc_home.html Joanne Thomka, Director Particular points of view, opinions or legal interpretations expressed in the primer are those of the authors and do not necessarily represent the official position, polices or opinions of the National District Attorneys Association. BASIC TRIAL TECHNIQUES for PROSECUTORS in IMPAIRED DRIVING CASES ba Updated By RICHARD ALPERT, JD The second edition of Basic Trial Techniques was funded by the Foundation for Advanc - ing Alcohol Responsibility ( Responsibility.org ). Responsibility.org is a national not-for- profit organization and a leader in the fight to eliminate drunk driving and underage drinking. Funded by leading distilled spirits companies including Bacardi U.S.A., Inc.; Beam Suntory; Brown-Forman; Constellation Brands, Inc.; DIAGEO; Edrington; Mast- Jägermeister US, Inc.; and Pernod Ricard USA, Responsibility.org has transformed count - less lives through programs that bring individuals, families, and communities together to guide a lifetime of conversation around alcohol responsibility and by offering proven strate - gies to stop impaired driving. The original version of this document was produced thanks to a charitable contribution from the Anheuser-Busch Foundation in St. Louis, Missouri, and was written in 2005 by David I. Gilbert and Michael E. Gilfarb, both then-Assistant State Attorneys of the Miami- Dade County State Attorney’s Office, and Stephen K. Talpins, then-Director of the Na - tional Traffic Law Center. This edition is updated by Richard Alpert, JD. Mr. Alpert received his JD from the University of Texas School of Law in 1986. For 30 years, he was an Assistant Criminal District Attorney with the Tarrant County District Attorney’s Of - fice in Fort Worth, Texas where he specialized in the prosecution of DWI and Intoxica - tion Manslaughter cases. Mr. Alpert currently works as a law enforcement lecturer and is an adjunct professor at Baylor Law School. For more information on Mr. Alpert, please visit www.richardalpertlaw.com . ba CONTENTS 7 / INTRODUCTION 8 / PRE-TRIAL PREPARATION 12 / GENERAL TRIAL TIPS 13 / VOIR DIRE (JURY SELECTION) 24 / THE OPENING STATEMENT 26 / PREPARING AND PRESENTING THE CASE 32 / CROSS EXAMINATION 42 / CLOSING ARGUMENT INTRODUCTION irst, let me welcome you to the profession! learned the importance of deconstructing each case A career as a prosecutor can be a rewarding at the end of a trial to find ways to avoid the pitfalls F experience and unlike your civil practice encountered in future trials. I later became the su - brethren, you are actually going to have pervisor of the misdemeanor section of my office, a the opportunity to try cases in front of a judge and a position I held for twenty years. In that time, I always jury on a regular basis. Furthermore, while their cases communicated the following advice to new attorneys. focus on dollars and cents, your cases will focus on You will make mistakes and you will lose trials. That blood, sweat and tears. is expected and while you won’t enjoy losing cases In a perfect world, once you have been hired by a that doesn’t mean that you are not suited for trial prosecutor’s office, you would be eased into this ex - work. It means that the road to becoming a trial at - perience so that over time you could gain confidence torney is not straight or smooth and takes time. and develop a talent for trial work. Your reality, if it You will be facing defense attorneys that have more is anything like mine, is that your training consists of experience and there is nothing you can do about being handed an office directory, the necessary code - that. Over time you will learn that more experience books, and an overwhelming stack of case files. does not always mean better prepared and that the I was in my first jury trial the same week I started passion you have for your job, for your cases, is some - work. I had a partner that had all of six months expe - thing your more experienced opponent lost many rience and though I got to sit second chair for the years ago. Passion, and a sincere, deep-seated belief first trial, that still involved me preparing a witness, that you are advocating for justice, can compensate making an opening statement, cross examining a wit - for the skills you are still developing. ness, and delivering a closing argument. The next In the pages that follow I will share the lessons I week I was lead, and I picked my first jury and went have learned as a trial attorney and as a trial “ob - through the whole process again. I made many mis - server” that, over time, gave me an edge over my op - takes in those first two trials and felt totally unpre - ponents. This monograph is designed to expose you pared and yet we got a guilty verdict on both cases. to different strategies with examples and tips that I That experience taught me two important lessons: have used in my jurisdiction in cases that involve im - First, trial advocacy may be an “art” but you don’t paired driving. By “impaired driving” I mean cases have to be a great “artist” to be rewarded with suc - where the driver’s mental or physical faculties are im - cess. That lesson eased my stress about feeling like I paired due to the introduction of alcohol, drugs, a did not have time to prepare, and that was good be - controlled substance or any combination of those cause over the next thirty years I rarely tried a case substances. For the purpose of this monograph “in - without some sense that there was more I needed to toxication” and “impaired” describe the same crimi - do. The second lesson was that success isn’t about not nal conduct. Be mindful that your jurisdiction may making mistakes but rather about learning to adjust have rules, statutes or case law that prohibit you from and overcome those mistakes. employing some of these techniques. As I continued to try cases, win cases, lose cases, I BASIC TRIAL TECHNIQUES FOR PROSECUTORS IN IMPAIRED DRIVING CASES | 7 PRE-TRIAL PREPARATION successful trial starts long before the venire that motivates the jury to convict. is brought into the courtroom. Prosecutors A prosecutor should try to create a catch phrase A define success as seeking justice in every that captures the theme and try to weave that theme case. If a prosecutor determines a trial is throughout the trial. Advertisements, quotation dic - necessary to seek justice, the prosecutor has deter - tionaries, slogans and proverbs can be helpful. The mined that justice will be served by a conviction in prosecutor should be able to present his theme in a the case. Most cases are resolved without a trial. In few short words or phrases. An easy way to start de - the event there is a trial, preparation is the key to vic - veloping a theme is to say, “This is a case about…” tory. The prosecutor must thoroughly familiarize and finish that phrase with as few words as possible. himself 1 with the evidence, case strengths and weak - nesses, and the law before selecting a jury. Structure The presentation should tell the story in a clear, Theme concise fashion. It may be easiest to present the wit - One of the most important strategy decisions the nesses and evidence in chronological order. A prose - prosecutor makes is selecting a proper theme. The cutor should not be wed to that chronology and theme is the general storyline of the case. A prosecu - should instead be prepared for the possibility that tor should choose a theme that resonates with the av - conflicts in witness scheduling may make that impos - erage person. Whenever possible, choose a theme sible. If the chronology of the story is not going to be smooth, the prosecutor should prepare the jury for that eventuality in the opening statement. Remem - Practice Tip ber, it does not matter to the jury what order the pieces are added to the puzzle so long as they have a Typical impaired driving themes revolve around clear understanding of the final picture. responsibility and consequences like the If some witnesses are not as strong as others, a following examples: prosecutor may want to consider organizing the wit - nesses in such a way that the weak witness is sand - n “On (date) the defendant made some choices. wiched between two stronger witnesses. Whenever Now he must be held accountable for those possible, the prosecutor wants to ensure that he be - choices.” gins and ends strong. n “You drink. You drive. You lose.” n “The defendant didn’t control his drinking, so Evidence he couldn’t control his driving.” A prosecutor should pre-plan the strategy for 1 The use of the term “he,” “him,” or “his,” is used throughout this document for economy and includes all genders. 8 | BASIC TRIAL TECHNIQUES FOR PROSECUTORS IN IMPAIRED DRIVING CASES proving the case and not introduce evidence simply should not call him. because it exists. For example, a prosecutor should The prosecutor should determine how to intro - consider not calling witnesses who do not advance the duce the evidence he wants to present. He should re - theme or argument or whose testimony would dupli - view applicable statutes, available predicate manuals, cate that of other witnesses. The more witnesses a and seek guidance from more senior prosecutors.
Load more

Recommended publications
  • The Basic Elements of Direct Examination
    The basic elements of direct examination * By: F. Dennis Saylor IV and Daniel I. Small ) February 24, 2017 In theory, at least, an effective direct examination should be one of the easiest things to accomplish in the courtroom. The witness is almost always friendly; in fact, it’s often your own client. The testimony is almost always entirely predictable. And the goal is usually pretty straightforward: telling your side of the story. Nonetheless, too many direct examinations are neither as clear nor as compelling as they ought to be. Maybe that’s because too many lawyers view direct as a simple, almost mechanical, task: Just put your witness on the stand and press “play.” But a truly effective direct examination cannot be created on the fly; it requires careful organization and planning. Moreover, it requires discipline — in particular, the discipline to ask questions carefully, without leading and without excess “noise.” In our upcoming columns, we will talk about different parts of the challenge of effective direct examination. But let’s begin at the beginning. There are six basic elements of an effective direct examination: (1) introducing the witness, (2) setting the stage, (3) telling the story, (4) showing the evidence, (5) defusing problems and (6) concluding effectively. 1. Introducing the witness Most lawyers ask a handful of questions up front to introduce and “humanize” the witness. A few questions about a witness’s background (such as residence, occupation, family or education) are normally permitted, even if technically they aren’t always entirely relevant. But be careful not to overdo this.
    [Show full text]
  • Using Leading Questions During Direct Examination
    Florida State University Law Review Volume 23 Issue 2 Article 4 Fall 1995 Using Leading Questions During Direct Examination Charles W. Ehrhardt Florida State University College of Law Stephanie J. Young Follow this and additional works at: https://ir.law.fsu.edu/lr Part of the Evidence Commons, and the State and Local Government Law Commons Recommended Citation Charles W. Ehrhardt & Stephanie J. Young, Using Leading Questions During Direct Examination, 23 Fla. St. U. L. Rev. 401 (1995) . https://ir.law.fsu.edu/lr/vol23/iss2/4 This Article is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Florida State University Law Review by an authorized editor of Scholarship Repository. For more information, please contact [email protected]. USING LEADING QUESTIONS DURING DIRECT EXAMINATION CHARLES W. EHRHARDT* AND STEPHANIE J. YOUNG"* I. INTRODUCTION ..................................................... 401 II. BEFORE ADOPTION OF FLORIDA'S EVIDENCE CODE ......... 402 A. An Exception for Leading Questions on Direct Examination ................................................ 402 B. Voucher Rule Barred Impeaching a Party'sOwn Witness ....................................................... 404 III. ADOPTION OF FLORIDA'S EVIDENCE CODE ................... 405 A. Section 90.608: Impeaching an Adverse Witness... 405 B. Section 90.612(3): Use of Leading Questions ....... 406 C. 1990 Amendment to Section 90.608 ................... 408 D. Evidence Code Amendments Make Rule Unnecessary................................................
    [Show full text]
  • Direct Examination
    Direct Examination dvocates begin the presentation of evidence by calling witnesses. The questions they ask of the witnesses they call are direct examination. A Direct examination of a witness should be the easiest part of an arbitration hearing. You have a friendly witness on the stand who generally wants to be helpful to your case. All you need do is ask the witness some simple questions and let them tell the arbitrator their story. Nothing could be easier, right? And nothing could be more perilous. Unlike cross-examination, you do not have complete control over the witness. Rather than stating facts and merely having the witness agree or disagree with those facts, as on cross, during direct it is the witness who narrates the facts. A misstatement, momentary lapse of memory or even an inappropriate emotional response and your case has suddenly become that much more difficult. Like any skill, questioning a witness is something that can be improved with practice and study. Practice not only by conducting direct examinations during your assigned arbitration hearings but also by offering to assist your fellow advocates as they prepare witnesses for arbitration. Help them conduct mock examinations of the witnesses that will testify during their assigned arbitrations. In addition, I recommend watching other advocates in action. If they’re better than you are, you’ll discover new skills or techniques you can apply to your cases. If they’re worse than you are, you’ll be reminded about mistakes that you shouldn’t repeat. Regardless of what happens, you’re almost guaranteed to learn something.
    [Show full text]
  • The Perils of Calling Your Opponent As a Witness in Your Case
    OUTSIDE PERSPECTIVES The Perils Of Calling Your Opponent As A Witness In Your Case YEARS AGO, I WATCHED A PLAINTIFF’S ing on direct did not voluntarily take the stand and, attorney fail miserably in his attempts to tell his more importantly, did not have the opportunity prior to client’s story to a jury through his very first wit- examination by the opposing counsel to fully tell his or ness – one of the named her story. Many judges under these circumstances will Michael A. Stick defendants. At a recess, a allow an adverse witness greater freedom to deviate friend said to me: “This from the standard “yes or no” answers of cross exami- just proves that you are a nation and to explain their answers. This results in fool if you try to put on your case in chief through a direct examination that is often lengthier, choppier, an adverse witness.” As self-evident as my friend’s less predictable, and ultimately less compelling than a advice might seem, it is often ignored. tight, clean cross examination of the same witness in Except under unique circumstances, examining an your opponent’s case. The time to examine an unpre- adverse witness on direct during your case in chief dictable and hostile witness is during cross examina- for any extended period of time is usually a mistake. tion and not on direct during your case in chief. To begin with, using an adverse witness as your To make matters worse, juries in particular might spokesperson is simply not a compelling way to offer sympathize more with an adverse witness being exam- your evidence at trial.
    [Show full text]
  • Making Your Case Through Effective Direct Examination
    Making Your Case Through Effective Direct Examination Paul K. Sun, Jr. & Kelly Margolis Dagger © Ellis & Winters LLP 20152018 What is direct examination? The examination of a witness you have called in the defense case. The witness could be your client, an expert, a law enforcement officer, a percipient witness, etc. © Ellis & Winters LLP 2015 Right to Present Witnesses “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” U.S. Const. amend VI. Remember to request trial subpoenas per Fed. R. Crim. P. 17, and do so early if you are asking the marshals to serve. © Ellis & Winters LLP 2015 Direct Examination—Overview A. Mechanics of Direct Examination B. Preparing Yourself for Direct Examination C. Preparing Your Witness for Direct Examination D. Conducting a Direct Examination © Ellis & Winters LLP 2015 MECHANICS OF DIRECT EXAMINATION © Ellis & Winters LLP 2015 Procedural Considerations—Rule 611 Fed. R. Evid. 611—Mode and Order of Examining Witnesses and Presenting Evidence (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.
    [Show full text]
  • 3. Form of Witness Examination
    3. FORM OF WITNESS EXAMINATION 1. Judicial Discretion The trial judge has broad discretion to control the procedure of interrogating witnesses and presenting evidence so that the trial furthers three goals: facilitating truth-determination, avoiding waste of time, and protecting witnesses from harassment. 2. Separation of Witnesses At the request of a party, the judge must order witnesses excluded from the courtroom so they cannot hear the testimony of others and (purposely or inadvertently) alter their own testimony to be consistent. Rule 615. The order should include a prohibition against discussing testimony outside the courtroom. The rule does not apply to parties, who may remain in the courtroom. If a party is an organization, it may designate one representative to remain in the courtroom to assist the attorney. In criminal cases, this is usually the lead detective. The judge has discretion to also allow an expert witness to remain in the courtroom and assist counsel in a complex cross-examination of the opposing expert. The victim of a crime may not be designated by the State to remain in the courtroom, but may be called as the first witness and then allowed to remain after testifying. 3. Basic Procedure The basic principle of witness testimony is that it must be presented in question-and-answer format, i.e: a. The attorney asks questions. b. The witness supplies answers. This means three things: a. The attorney must ask a question and not make statements and arguments. If the attorney makes a remark, such as "That's very odd, considering it was pitch dark outside," you may object that "This is a statement, not a question." b.
    [Show full text]
  • Direct Examination and the Friendly Witness
    Direct examination and the friendly witness * By: F. Dennis Saylor IV and Daniel I. Small ) March 30, 2017 In our last column (“Direct examination B: to lead or not to lead,” March 13), we talked about the importance of avoiding leading questions in direct examination. Many lawyers assume that giving up on leading questions means giving up on control. Of course, that isn’t true. You still get to ask the questions, and the witness is usually friendly. But you have to make sure the direct examination goes the way you want it to. That requires both preparation beforehand and attention during the trial. Preparation. First and foremost, prepare your witness. That includes going over not only the anticipated testimony, but how you expect it will be delivered by the witness and what might go wrong. Make sure the witness understands that you are in charge and that the witness has to take his or her cues from you. Tell your witness you may need him to stop talking, or to go back over something, or even to be interrupted. As part of his witness preparation, Dan sometimes analogizes to sports broadcasters who use slow-motion replays. You can’t always follow the story in real time; often, it happens too fast, and you have to stop, slow it down, and go over it frame by frame. Mistakes. All witnesses make mistakes. Prepare your witnesses for that likelihood. Tell them that it’s OK, jurors know that witnesses are humans. And tell them that when they make a mistake in the courtroom, you’re going to stop and try to fix it.
    [Show full text]
  • 10. Cross-Examination and Impeachment
    10. CROSS-EXAMINATION AND IMPEACHMENT A. CROSS-EXAMINATION Cross-examination of witnesses called by the opposing party is an absolute right in both civil and criminal cases. It usually consists of two kinds of questions -- (1) those designed to bring out additional facts and details about the events that were not brought out during the direct examination, and (2) those intended to raise questions about the credibility of the witness. Admissibility of the first kind is governed by ordinary rules of relevancy. The second category is known as “impeachment,” and has its own set of rules. The cross-examining attorney is bound by the same rules of evidence as the attorney who conducted the direct examination, with a couple of differences. The cross-examiner has license to use repetition (despite Rule 403) to probe the testimony, and may use leading and suggestive questions, and demand a responsive non-evasive answer, but may not unnecessarily harass or embarrass the witness. One typical issue involves drawing a line between permissible leading, suggestion and repetition used when witnesses are hostile, evasive or lying, and impermissible badgering a witness who is trying to be cooperative but you just don't like the answer. In the following example, some judges would allow it, others would not, depending on their opinion whether the witness genuinely did not remember or was being evasive. Q: Was Joe drunk? A: I don't know. Q: You don't know if Joe was drunk? A: That's right, I don't know. Q: Well, did he appear drunk? A: I don’t know.
    [Show full text]
  • An In-Depth Look at Direct Examination of Expert Witnesses†
    An In-Depth Look At DIrect exAmInAtIon of expert WItnesses An In-Depth Look at Direct Examination of Expert Witnesses† Deborah D. Kuchler I. IntroDuctIon The Honorable Ralph Adam Fine1 describes a trial as a “battle for your client while the jurors are those whom you must persuade” and he describes direct examination as a “great engine” to get at the truth.2 Fine’s theory is for an attorney to “[u]se what the jurors already know – before they hear any of the witnesses.”3 He encourages examiners to “build on this foundation of pre-trial knowledge to win your case through the expert witness; that is, use the witness to validate the points you need to make on direct-examination” starting far enough back in the logical train so that either (1) the jury knows the answer before the witness responds; or (2) the answer rings true to the jury.4 † Prepared by the author on behalf of the Trial Tactics, Practice and Procedures section. Deb Kuchler acknowledges with thanks the contributions of Nathan Swingley and Mary Nell Bennett to the preparation of this paper. 1 The Honorable Ralph Adam Fine is an appellate court judge in the Wisconsin Court of Appeals, located in Milwaukee, Wisconsin. He is also the author of the hoW-to-WIn trial mAnual (Juris 3d rev. ed. 2005). 2 rALph ADAm fIne, DIrect AnD cross-exAmInAtIon of expert WItnesses to WIn, SM060 A.L.I.-A.B.A. 265, 267 (2007), adapted from rALph ADAm fIne, the hoW-to-WIn trIAL mAnuAL, supra note 1.
    [Show full text]
  • Discrediting the Truthful Witness: Demonstrating the Reality of Adversary Advocacy
    Fordham Law Review Volume 69 Issue 3 Article 8 2000 Discrediting the Truthful Witness: Demonstrating the Reality of Adversary Advocacy Eleanor W. Myers Edward D. Ohlbaum Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Eleanor W. Myers and Edward D. Ohlbaum, Discrediting the Truthful Witness: Demonstrating the Reality of Adversary Advocacy, 69 Fordham L. Rev. 1055 (2000). Available at: https://ir.lawnet.fordham.edu/flr/vol69/iss3/8 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. DISCREDITING THE TRUTHFUL WITNESS: DEMONSTRATING THE REALITY OF ADVERSARY ADVOCACY Eleanor W. Myers' Edward D. Ohlbaum " INTRODUCTION Law students, and most of their teachers, support, even champion, the principle that the criminal defense lawyer is obligated to challenge the state's case and to demand that every element of every charge be proven beyond a reasonable doubt. At the same time, they accept that "adversary advocacy"1 is not without limitation. For example, a zealous defender is not permitted to suborn perjury or argue false evidence. Disagreement arises, however, when the defense lawyer undertakes to cross-examine a truthful prosecution witness first to show, and later to argue, that the witness is lying. Whether it is ethically permissible to suggest that a truthful witness is lying during cross-examination has been famously characterized as one of the "three hardest questions."2 This question is the subject of fascinating commentary and thoughtful debate in professional literature.' * Associate Professor, Temple University Beasley School of Law.
    [Show full text]
  • §1.5 Offers of Proof
    GW Law Faculty Publications & Other Works Faculty Scholarship 2018 §1.5 Offers of Proof Christopher B. Mueller University of Colorado Law School Laird Kirkpatrick George Washington University Law School, [email protected] Lisea Richter University of Oklahoma College of Law Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications Part of the Law Commons Recommended Citation Mueller, Christopher B. and Kirkpatrick, Laird C. and Richter, Liesa, §1.5 Offers of Proof (2018). C. Mueller, L. Kirkpatrick, & L. Richter, Evidence §1.05 (6th ed. Wolters Kluwer 2018) ; GWU Law School Public Law Research Paper No. 2018-50; GWU Legal Studies Research Paper No. 2018-50. Available at SSRN: https://ssrn.com/abstract=3275006 This Chapter is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in GW Law Faculty Publications & Other Works by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. §1.5 Offers of Proof In order to preserve for appeal arguments that the trial court erred in excluding evidence, it is necessary under FRE 103 to make an adequate offer of proof unless one of several exceptions applies. Excluding evidence where no offer of proof was made is unlikely to be plain error because the absence of the offer usually produces a record that does not disclose the error. Reasons to require offers The reasons to require offers of proof are to let the trial judge “reevaluate his decision in light of the actual evidence to be offered” and help the reviewing court decide whether “the error affects the substantial rights” of the offering party.1 Reviewing courts often comment that without an offer of proof they cannot evaluate claims of error, that the mere possibility of error in excluding evidence is not ground for reversal, and that assessing error in such cases is difficult or impossible.
    [Show full text]
  • DIRECT EXAMINATION of EXPERT WITNESSES By: Michael J
    This paper was prepared by a Warshauer Law Group attorney, for an audience of lawyers, as part of a ConLtienguailn Egd ucation program or for publication in a professional journal. If presented as part of a Continuing Legal Education program, the presentation included a speech and possibly a PowerPoint or Keynote presentation. An audio or video recording of the speech might be available from the sponsor of the program. This paper does not constitute legal advice; and readers are cautioned that because the law is continuously evolving that all or portions of this paper might not be correct at the time you read it. DIRECT EXAMINATION OF EXPERT WITNESSES By: Michael J. Warshauer I. INTRODUCTION “Modern litigation is using experts with unparalleled frequency. No longer are experts used merely in personal injury cases, nor are they only physicians and surgeons. Injury cases now regularly use economists. Products liability cases often use reconstruction experts. Building construction cases regularly use engineers and architects. More and more frequently, trial lawyers are using experts to explain how and why things happened the way they did, or did not happen the way they were supposed to. Because of this, being able to prepare and effectively present experts at trial is an essential skill every trial lawyer should have.”1 The use of expert witnesses is unquestionably an essential and ever increasing practice in modern tort litigation. Certainly, in every case involving a bodily injury, expert testimony comes in through medical care providers. Attorneys in Georgia regularly use economists, accident reconstructionists, engineers, and other more specialized experts in state and federal court trials.2 1 Thomas A.
    [Show full text]