Tips for Retaining Your Next Expert Witness

While lawyers are important in any legal action, experts also play a major role in the U.S. judicial system. And while both plaintiffs and defendants make extensive use of expert witness testimony, engaging the right expert is no small matter. When interviewing a potential expert, obviously you will check their background, experience, degrees, licenses, certifications, employment history, where they have testified before, and for whom. Find out if other law firms have used them. Get references. There are also a few indicators of ability to communicate you can pick up on from a review of the potential candidate's background, to wit:

• If the potential witness is well known on the speaking circuit that is one indication that they are accustomed to speaking in front of large crowds.
• If they have assisted law firms in the past, chances are they are comfortable under the pressure of the courtroom.
• If they are published, this should indicate to you that they know how to organize a pattern of thoughts into coherent and concise conclusions.
• If their job description specifies that they are in an executive management consultant position, this will indicate they can communicate with executives and others with busy schedules and short attention spans.

Pay particular attention to the candidate's ability to communicate their expertise. Here is one example from the lawyer's point of view, from co-author Ed Pope:

Ed once interviewed the litigation head of a major auditing firm with the thought of hiring his firm in a case he was handling. The man had top-notch credentials and his resume indicated he had been involved in several multi-million dollar disputes. However, the interview was over for him when he learned that the candidate had never been cross-examined! All of the cases to which he had been assigned ultimately settled. Since he had never endured the challenge of a bright and prepared lawyer attempting to pick apart his testimony, Ed decided he would not hire him or his firm.

Once you are otherwise satisfied with the witness candidates' technical abilities, then look for the following other traits, particularly in these six areas:

1. Personality

An experienced witness is not only competent in his or her profession but also has a congenial personality. A judge or jury that does not like a witness will develop an unfavorable impression of them that could prejudice the whole case.

2. Trustworthiness

It's difficult tomeasure trustworthiness. It is possible however for a good potential expert witness to exhibit the impression of trustworthiness. One component is reputation. If your witness is well known for example, a judge or jury may be more at ease with taking their testimony at face value. Even extracurricular activities might come into play. A recognized personality like a former Dallas Cowboy or New York Yankee might just be noteworthy enough to be more believable, even if this aspect of their life is only tangential (at best) to their purpose for testifying.

3. Intuitive Awareness

The expert must "fit" with the primary lawyer like Bud Abbot fits with Lou Costello. We are not insinuating that one turn the court into a comedy forum. As with any famous comedic team however, one member should always ready for the "set up line" broached by the other member. Here is what we mean.

Ed was once responsible for hiring an expert witness in a telephone case in Florida. This was a utility case, where testimony is usually pre-filed. As part of the routine introduction of his testimony, Ed asked him if he had any corrections. (He knew that there were some "nits" that needed correction.) As he went over those changes he asked the follow-up question, "Are there any changes you need to make to your testimony?" obviously thinking the answer would be "no." However, the witness said "yes," and then, to his surprise, changed some material parts of his testimony. It turns out that one of the experts on the other side had pointed out some errors in the expert's calculations and he "corrected" them on the stand. Of course, Ed had to maintain a poker face and act as though he knew of all of those changes. The final results however turned out to be very much against his client's position. So what's the moral to this story? In addition to preserving YOUR trustworthiness, think of the lawyer's too. Be aware of the situation. If you change your opinion - let the lawyer know AHEAD of time!

4. Honesty

This is obviously a tough one and there is no substitute for checking references along with other due diligence. It is also possible however to draw upon gut feelings. After all, when you go buy a car you formulate on-the-spot impressions not only about the car but also about the sales person. You make a trust / no trust decision quickly. In the same way, after many years in the legal profession one learns what double talk sounds like. Draw on that experience, along with ard facts to form a more complete assessment of honesty.

5. Humbleness and "Open" Demeanor

People do not like to be bombarded with the "expertise" of others because it makes them feel less intelligent or that the person is "showing off." Therefore, some of the most effective witnesses are those who can project expertise and authority on a subject without putting people off or making them feel belittled.

6. Credibility

While any expert's opinions must be reliable, expert's opinions must also be believable. Any conclusions must be based on generally acceptable standards in the appropriate profession or field. Proof may come from offering up treatises on the subject, articles in trade journals or the testimony of peers. However, more than simply citing standards, experts must also be able to fill the gaps between the facts they are examining and the resulting conclusions. An expert must be able to explain precisely why, under his or her methodology, an avocado is not a pear. Your expert should be a person who is truly able to give the judge or jury a crash course on the subject in an engaging way that holds their attention. Ed believes this point is more important than ever today:

"The law requires judges to be 'gatekeepers' with regard to expert witnesses. This role arose out of the idea that there was a lot of 'junk science' being presented in American courts. It was believed that it was possible to have any position supported by a so-called expert. As a result, the U.S. Supreme Court and several other courts and legislatures established standards for expert testimony based on science."

Bottom line this means it is now harder to get experts past the initial review by the judge. Ed further cites a case in Texas in which a doctor with many years worth of surgical expertise and who also taught what he knew at a local medical school. He was rejected as an expert witness based on the fact that he had not performed the specific operation in question in many years.

So Who Makes The Best Expert?

In the final analysis, it's all about communications. Consider consultants for example. A good consultant communicates with his or her audience depending on who they are. A good expert witness should do likewise. For instance, when communicating with systems programmers, an Information Technology consultant will often use flow charts. That's because this is how programmers are accustomed to thinking. When communicating with executives, they might use PowerPoint or GANT charts. That's how executive brains are wired. When communicating with lawyers, our firm for example actually drafts (but does not file of course) pleading documents. We operate in this manner because our experience has shown that when you explain a highly technical topic, lawyers often just don't get it. When we style the same explanation as a pleading however - they do! So why is this subtle change so effective? First, we suppose because that's just how lawyer brains have been wired. Secondly, the attorney gets to see the arguments in a form closer to what the judge will see. It helps them better compute their chances. Finally, (to avoid the appearance of only picking on the lawyers) part of the change probably rests with us experts. By styling a highly technical issue as a pleading, we inadvertently "dumb it down," explain it better, and communicate it better - the same critical things we suggest to you in this article! I believe it pays when we eat our own dog food and don't just suggest theories to you!

Summary and Conclusions

Only one thing is certain: if one side hires an expert, the other side will also. Hence, we have the inevitable "battle of experts" so common in litigation today. Reflective of this reality, the most successful expert witness not only has knowledge which is unsurpassed in his or her profession, but also the appearance of objectivity, earnestness and charisma to convey that expertise to non-technical persons. Hopefully this article has been helpful in identifying the elements of expert selection that can influence juries and ultimately win trials.

Leo A. Wrobel has over 35 years of experience with a host of firms engaged in banking, manufacturing, telecom services and government. An active author and technical futurist, he has published 12 books and over 800 trade articles on a wide variety of technical subjects. A sought-after speaker, he has lectured throughout the United States and overseas and has appeared on several television news programs. Leo is CEO of two Dallas-based consulting practices, Tel Com Labs Inc. and b4Ci. Inc. See www.tlc-labs.com and www.b4ci.com. Leo is also President of a 25 year old Milwaukee based not for profit, the Networks and Systems Professionals Association. www.naspa.com For more information on Leo call (214) 888-1300 or email leo@tlc-labs.com.

Sharon M. (Ford) Wrobel was a major content contributor to Leo's 2009 book "Business Resumption Planning Second Edition" © Taylor Publishing Inc, and was co-author of Leo's latest book "Disaster Recovery for Communications and Critical Infrastructure" © 2009 Artech House Books Inc. She has published dozens of trade articles for various publications. Sharon attended the University of Maryland and El Centro College in Dallas where she trained as a registered nurse before joining Leo in his businesses. Sharon also served honorably as a public official, accepting appointments to the City's Planning and Zoning and Historical Commissions. She can be reached at sharon@b4ci.com.

Eddie M. Pope is an attorney in private practice in Austin, Texas. He has extensive experience dealing with AT&T and the Bell companies as a regulator, working for the Oklahoma Corporation Commission and two tours at the Public Utility Commission of Texas as well as being General Counsel/General Regulatory Counsel for an entrepreneurial telephone company headquartered in Dallas. You can learn more about Ed at www.popelawtx.com

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