The Care & Feeding of Your Expert Witness

Working as an expert witness in a civil case, I enjoy the challenge of the issues at hand and it provides a good break from the main work in my consulting and training practice areas.

So having been around attorneys and opposing counsel, and after talking with many colleagues who have served in the expert witness role, I offer the following food / water/ and exercise guidelines to keep your expert witnesses happy and healthy:

Do speak to us before you depose other witnesses.
We welcome the chance to help you develop a questioning strategy that supports your current plan. We want to help you attack the other side’s covert or barefaced lies right when you hear them. You already know it’s not uncommon for some of their experts to stretch the truth and claim they can fix everything from schizophrenia to dandruff. In one of my cases, the other side’s security expert claimed in his C.V., to have personally conducted over 4,000 site security surveys in 10 years, a run of more than one per day, every single day, for a decade! Had I known of this prior to his deposition, we could have laid a better trap for this outrageous claim.

Ask us what we might ask the pending deposition witness, if we were in your shoes. Even five or six questions from us might lead you to themes that were previously not in your thoughts.

Do give us mock questions and spend enough time on our deposition preparation.
Since I only work on civil cases, and I work a lot in the Golden State, most of my cases settle, either after my deposition and prior to trial, or prior to my deposition and prior to trial. Truth be told, either way I’m always a bit relieved. Depositions and court appearances are a near-daily event for many attorneys; not so for the expert witnesses, who find these procedures stressful. We can all use a bit of coaching from you, prior to any deposition or court session. Put us through our paces for an hour or so. Ask hard questions and role-play the events so we know what to expect. Give us some deep background on the opposing counsel, so we can prepare for their styles. (Since the best indicator of future behavior is past behavior, most attorneys don’t usually change their deposition approach from case to case. What you know about their past can help us avoid some of their well-laid mine fields.)

Do respond to our questions and materials.
We realize you have other cases and this may be just one of many plates you’re spinning. But we need some reassurance that you received all of the reports, correspondence, faxes, updates, case notes, or even just our suggestions, that we have may have sent over. If you haven’t read what we’ve given you, we will both look bad when the other side picks up a page and starts dissecting every comma and semicolon.

Do discuss the strengths and weaknesses of your case and the scope of testimony you want from us.
Since we aren’t usually attorneys ourselves, we have a marked tendency to see the ocean through our own drinking straw. Your specialty area may not be ours. It always helps us to hear the burden of proof, the standard of care, the jury instructions, the most recent case laws, or the appellate decisions on our cases. We want to know what you think will work and what will not, in terms of our testimony. Tell us what you want to get on the record and what areas we should avoid. Discuss the downside, so we can see what the other side wants us to admit.

Do pay us on time.
The relationship between expert and attorney should be based on mutual trust, respect for each other’s abilities, and economic fairness. Plenty of hard feelings can arise when the party with the checkbook changes the tune in mid-dance for the party waiting for the check. Most experts have learned this the hard way, and now use letters of agreement, ask for retainers, and expect payment for services rendered, win or lose. Unpaid experts can emit an air of “saying anything for your side, just to get paid” to opposing counsel.

Further, just as attorneys gossip about lousy experts, experts gossip about unethical, non-paying attorneys. We realize you often get paid at the very end of the case, if at all. We know you have expenses and contingency agreements with your clients. And you already know that we can’t say, “they said the check is in the mail,” when we’re at the checkout stand at the grocery store.

Don’t wait until the last minute to get us important case documentation.
I’ve read case materials on the plane ride out to the deposition, overnighted to me in much haste and expense, even though they were created months ago. Sometimes these things are unavoidable, but when they are just a result of bad planning, it creates stress for us. Give us the time to read, digest, and comment on new information or events.

Don’t expect us to lie or exaggerate for your case or your client.
No attorney would ever say to an expert, “Here’s a list of lies I want you to tell.” However, sometimes the line between the real truth (which may hurt your case) and asking us to make an intentional “omission” when it comes to the facts, can dent our ethical compasses. Sometimes a bad set of facts is what it is, so asking us to put a public spin on things is morally and ethically difficult.

Don’t leave us hanging during the deposition.
We know you’re not allowed to coach us through a difficult part of the process, but you can help us by protecting us. The tried-and-true “let’s take a break” approach gives us a chance to re-gather our wits, locate that ever-missing document we’ve been struggling to find since Minute One, and hear from you what is the best answer to the last presenting question. Three things help us in deposition the most: having you pay close attention to what opposing counsel asks (so you can object or help us stay within our scope); having you remain civil with opposing counsel (back-and-forth arguments where one attorney threatens to get a restraining order against the other or to drag everyone in front of the judge can rattle our nerves. We know it’s rare these bluffs get called, but the exchanges disrupt our flow of thoughts); and reminding us to “just answer the question asked,” and not prattle on and on.

Don’t take us too far out of our comfort zones.
It is the wise expert witness who does not profess knowledge, skills, or abilities in areas where he or she is not strong. Review our C.V.’s and helps us both put an intellectual fence around our strong suits. When opposing counsel tries to take us off into the high grass, where we are not suited and could hurt your efforts, put the brakes on them.

Don’t leave us hanging after the case settles. Debrief!
This last one is a major pet peeve of mine. I have been on cases where I heard nothing for months after a deposition – no returned calls, no progress reports, no updates. And then BOOM! I get a phone message from a paralegal, saying, “Uh, the Rudolph v. Claus case just settled, so please send us your final bill. Thanks.” We have a need for closure, so get on the phone to tell us what happened. We realize many of the settlement details are confidential, but give us a good sense of how or if we contributed to your success.

The relationship between attorneys and expert witness is critical for both sides. By staying with appropriate boundaries and professional practices, we can both get the benefits we need.

Dr. Steve Albrecht, PHR, CPP, is internationally known for his work on high-risk HR issues and workplace violence prevention. He can be reached at drsteve@drstevealbrecht.com.