If opposing an expert, pre-trial preparation should include a motion to have the expert’s complete file available for review the day before their trial testimony. While not all trial courts will require disclosure the day before testimony, such a request is reasonable and may be granted, especially if one is allowing the same disclosure for their own witness’s file. Similarly, counsel may be wise to preemptively request sanctions or other relief, if the expert does not comply with the court’s order and does not make their complete file available prior to testimony. In one case, it became apparent an expert had not brought their entire file for review by opposing counsel, instead only providing their report and key documents. While it was apparent opposing counsel was at a disadvantage, and likely prejudiced, they failed to request relief for the expert’s failure to share the entire file. The trial judge may be more inclined to grant a motion for sanctions or relief, as they tend to disfavor a party or witness who does not comply with court orders. Payment: Will It Affect Jury Perceptions? Under OEC 401 (ORS 40.150) and 609-1 (ORS 40.360), evidence may be introduced to impeach a witness for bias or interest if the evidence has a mere tendency to prove such bias or interest. This standard for relevance and admissibility is relatively low, so opposing counsel may attempt to introduce evidence of an expert’s financial gain from testifying. Attorneys may believe jurors will be suspicious of high fees and may argue the expert is not truly impartial or simply a “hired gun.” To combat the appearance of bias, the proffering attorney should ask the expert to explain how their fees are commensurate with their experience, the complexity of the case, and their time and expertise. If this occurs during direct examination, it can preemptively address and deflate any attacks on the expert’s bias or motive. The ease with which an expert’s compensation is presented does not necessarily mean it will be persuasive to jurors. By definition, an expert provides information or opinions that would be helpful to the jury OEC 702 (ORS 40.410). Thus, jurors understand experts are someone who has the knowledge, education and experience beyond their own. Jurors are aware expertise comes at a cost. So, attacking an expert’s compensation is unlikely to be persuasive unless the amounts charged are unreasonable. For example, opposing counsel attacked an expert’s high hourly rate for file review and the flat rate for trial testimony. On re-direct, the offering attorney allowed the expert to explain how they arrived at their hourly rate (the same as their peers) and flat rate (due to closing their practice for the day of trial). The attack on the expert’s fees was unpersuasive. Persuasion: Admitting Limitations to Build Credibility An effective expert witness must do more than just deliver an opinion—they must be persuasive. One of the most effective ways to build credibility with the jury is by having the expert acknowledge the limitations of their analysis or findings. See View from the Bench p. 12 11 Trial Lawyer | Winter 2025
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