Noah Bolmer | Round Table Group
Guests from our Engaging Experts podcast reveal some of the most common pitfalls that hinder new expert witnesses. Avoid these common mistakes for successful engagements.
Mistake 1: Conflicts of Interest
Make sure you have thoroughly examined any potential engagement for conflicts, whether actual or perceived. Before accepting, insurance expert Kevin Quinley asks himself, “Are there any conflicts? Are you being asked to take a case adverse to someone whose interests you are already serving as an expert witness? Is it a business conflict?”
Even perceived conflicts are disqualifying, according to nutrition science expert Dr. Douglas Kalman:
[Both plaintiff and defendant in a case] have reached out to us multiple times. “Can you be an expert for us?” Each time, we say “No,” and they ask, “Why?” I said, “Well, there is a perception of a potential conflict of interest because, as an individual, I was at the wedding of somebody that works for one of these parties. Therefore, there is a perception of conflict.” I would rather not get involved, especially when both sides are asking us. It is not like you are going to get into a bidding war to sign a baseball contract. That is different, but you need to be upfront because the lawyers and law firms you work with do not want to be caught by surprise by anything during the discovery phase.
Mistake 2: Working Outside Your Lane
Each engagement is different, and you must decide if each fits within your specific area of expertise. Agreeing to work on a matter where you are not completely qualified, or comfortable can compromise the case as well as your credibility. Expert Quinley advises, “Stay in your swim lane—and by swim lane I mean your subject matter expertise—because it gets dangerous and does the client no favors, does the law firm no favors, and does you no favors to the credibility for your future engagements if you venture [into] an area that is external to your core expertise.”
Nevertheless, your proverbial lane can widen over time, according to psychology expert Dr. Alice Berkowitz:
You have got to feel very confident in that niche before you take on [other types of] cases. I was a neuropsychologist, and I started doing custody cases, alienation cases, parenting cases, and domestic violence cases. From there, I could branch out, but I developed my skills in family and dependency court. Now, I testify in civil court, federal court, and arbitration military court. Once you get the skills down, then you can broaden your specialties.
Mistake 3: Lacking Clarity on Expectations
Make sure that you are on the same page as your engaging attorney. Nobody wants to start from square one in the middle of an action, or worse, realize that you are unable to fulfill expectations because of a misunderstanding. Dr. Kalman firms up timing off the bat:
[W]hen you are working with law firms on complex (or even easy) cases, you have to manage the expectations [. . .] What highlights are you looking for? What are some of the strengths and weaknesses? Where can we introduce things [which the engaging attorney] may have not thought of? I’m thinking of these [questions] as I’m meeting the lawyer. We like to manage those types of expectations and get a clear-cut calendar timeline of when everything needs to be pristine. That helps because once you have good communication it is easier to be successful in what you are doing.
Legal blog publisher Stephen Embry recommends a proactive approach, “Many lawyers I have seen break down because they just leave it to the expert. They do not sit down and have this conversation. Questions about expectations on both sides—and experts need to demand their lawyers tell them what they expect. What does the lawyer want? That to me is the key.”
Mistake 4: Not Reviewing All Materials
After accepting an engagement, the trial team may give you a lot of material. Make sure to thoroughly review it, even if it seems extraneous. Insurance expert Thomas McCloskey recommends copious note-taking:
I start by reading all of the filings with the court, and I make notes on who is doing what. Then I look at the proofs submitted to the court to see if I agree or disagree. The whole time I have got my trusty legal pad next to me, and I am writing questions. Who did this? Why are we doing that? Why did you do that learning thing? I must put myself in the position of being in the middle of the litigation.
Mistake 5: Answering More than what is Asked
Depositions and trials involve a lot of questioning. While it is foundational that expert witnesses answer truthfully and clearly, it is important to stop after you’ve answered. Computer science expert Professor Joseph LaViola recommends a conservative approach to avoid traps:
You want to divulge as little information as possible. It is important to understand and answer the questions they are asking you—where they are trying to take you. There have been times, I have been put in that corner and tried to get out of it. Other times I have not been—I will see it in their rebuttal or their brief that Dr. LaViola said this, this, and this. Well, I said that, but it is taken completely out of context. You got your sound bite and therefore they are using me to try to help build their case.
Internal medicine expert Dr. John Steinberg agrees, adding:
They mean it when they say, “The whole truth and nothing but the truth,” do not fudge. Do not shade. You are not trying the case. They ask a question. Answer it completely—but do not go astray. Do not keep yakking, talking, and answering more. You are going to learn if you are an expert to carefully understand the question and answer it truthfully, fully, and completely, but no more. It is the lawyer’s job to ask you the questions. You are also not allowed to give expositions. You cannot get up and preach. You can only respond to a question. If there is something you want to get in the record that has not been asked, the attorney who retained you on what is called redirect or recross will ask that question.
Mistake 6: Contradicting Previous Opinions
Experienced experts may eventually find themselves in a position where they’ve said something in the past that they no longer agree with, orwith or written something that is only accurate given context. Financial expert Terry Stroud maintains credibility by answering directly and truthfully:
I have had people ask me before I say, “Terry here was your thought on this. Has it changed? Here is an important deal to your audience.” Do not be afraid to say, “my opinion has changed as facts change.” And your opinions need to change because, in almost every case that I have been involved in, you will get a new set of facts that you did not have from the time your report was written, to the deposition or trial. It could be many months, and the lawyers say, “Here is a new piece of information.” I always put in my reports that my opinions and conclusions can change if I am given new information [which] I did not have at the time I prepared my report.
Sport and fitness expert John Lauhoff limits contradiction by avoiding publishing:
Answer the questions honestly. [Keep] publications to a minimum or don’t do any publications. I have no publications, and the reason for that is that things change. Maybe your opinion changes, and I’m always asked, “Do you have any publications?” and I always say, “No”, [because] I might have written something ten or fifteen years ago, and for whatever reason, I don’t agree with what I said anymore. They’re going to pull that out. They’re going to find that, and they’re going to say, “Well, back ten years ago you said this but now you’re saying this. What’s the deal here?” Don’t write it.
Mistake 7: Losing Composure
Maintaining your demeanor can be challenging until you have become accustomed to long depositions, and tricky cross-examinations. Dr. Steinberg recalls, “Privately, I was not happy, but on the stand, always maintain a cheerful demeanor. I mean no joking around. You have to be serious, but pleasant. Be civil. Do not let anyone get under your skin. The minute you’re angry, you’ve lost, so just relax.”
Economics expert Professor Daniel Spulber recommends:
[I]t is the role of counsel to find out what you want to say, but also to throw you off your game. I tend not to get thrown by that. I am calm with you today, and I am also calm if people are pushing me and trying to throw me off. I am used to it, and it does not affect me. My advice here is this; stop, look, and listen. Stop talking. Look at Counsel. Listen to what they are saying if they are asking you a question. Maybe take a break and formulate an answer rather than trying to talk, interrupt them, or give an immediate response.
Mistake 8: Overuse of Technical Jargon
Remember your audience and assume that juries are comprised of laypersons. Mechanical engineering expert Professor John Abraham recounts some valuable advice:
I had an opportunity to meet with a jury psychologist who helped me articulate technical ideas to a layperson jury in ways that are easy to understand, not patronizing, and not get lost in wonkiness or jargon. Hearing from a psychologist about the things that are going on in the jury’s mind was extraordinarily helpful because, as technical people, we like to bomb people with facts, show graphs and data, etcetera. At the end of the day, you prove your case with facts, but you need the jury to understand your facts. I had a great quote from an attorney when I was walking out of a case. I said to the attorney, “Man, we just proved their case. We are going to win this thing. We are going to win. We proved it.” He turned around and looked at me and said, “What we proved does not matter at all. It is what the jury thinks.” That was a profound statement for me. It is a truism.
Retail expert Steve Haas agrees:
[M]any times my point of view and argument position is technical. The communication of these to the jurors in a way that someone who has not lived and breathed this for decades can understand is necessary—not any different than writing a college essay. What do I want to say, and how do I communicate it? What is the sequence in which the story makes sense? How do I step back and use anecdotes and stay away from industry jargon? Anything that someone who does not know this can say, “Oh, I can relate to that,” or “That does not seem fair, or “Of course, that is okay to do.” It is a matter of trying to give testimony where your goal is not to lose the jury’s attention by using terms they do not understand or bore them to death. How do I communicate effectively and powerfully and do it in a way that the average juror can understand my approach? Examples and anecdotes help bring things to life versus just being an unfamiliar abstract topic.
Mistake 9: Not staying current
Expertise is not permanent, especially in dynamic fields. Maintaining, and even expanding your knowledge ensures not only that you are qualified, but that you remain so. Computer science expert Dr. Chuck Easttom explains:
If I hire a mechanic, I assume they are an expert in my model of car and they can take care of business. So, I feel that is what an expert should provide in court cases. The way I maintain that is—and I am just a tad bit obsessive-compulsive—I am always learning something new. I have an absurd number of industry certifications. Seventy-four at this point because I frequently go back, study up, and take a new certification.
Expert Stroud goes to seminars to keep current:
It is challenging. As you know, the financial markets change daily. There are new laws and new regulations; it takes a serious effort to keep updated on things so I attend seminars. About ten years ago, I became a Certified Fraud Examiner, which appealed to law firms for litigation support. Once I got that designation, I started getting more and more calls. When law firms or attorneys look at my background, they know if there is a banking issue and if it involves fraud, I am the person to take the account.
Mistake 10: Failing to Protect Your Business
Even the best engagements can end on a sour note if you have trouble getting paid. There are a variety of billing options to ensure fair, prompt compensation. Imaging forensics expert George Reis uses a retainer:
I have only had trouble getting paid a couple of times in eighteen years—or however long I have been doing this work. Those have been the times when I have not handled the billing and the invoicing properly. I get a retainer on all cases, and when the retainer starts running short, then the retainer gets replenished.
Entertainment expert Kathryn Arnold knows that her reputation alone can be sufficient to drive a case to settlement, and makes sure she is properly compensated when this happens:
I’d already done about fifteen or twenty cases, and I was speaking with an attorney about my perspective on the case and he said, “We’re going to go and designate you.” I said, “Great.” [. . .] Two or three weeks later, I hadn’t heard from him. I kept calling and calling and finally got to someone who said, “The case was settled.” I said, “Okay.” I realized that they used my name as a credible expert, and the case was settled. Immediately, I realized that [an] appropriate deal agreement, or what we call a “fee schedule” was necessary. [Going forward] I made sure that prior to designation and/or prior to allowing anybody to know I was on the case, the fee schedule and a ten hour retainer had to be signed and sent to me [. . .] They even ask if it is nonrefundable—and in my case, it is for that very reason. Because you’re not only getting paid a solid rate for the work that you do, but you’re paid for the years that you put into your trade to earn you the right to call yourself an expert.
Successful engagements begin with knowledge, and expert witnesses who avoid these common mistakes start with an advantage over the competition. By understanding and addressing these pitfalls, you can position yourself as a reliable, credible, and invaluable asset.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.