Expert Witness Practice

It is easier than ever to find expert witnesses through the internet. You may wish to consult the expert witness directory at ExpertLaw, which allows you to find experts without cost, while avoiding the fees charged by expert witness "referral agencies" or "brokers."

Tips for Attorneys

When you are looking for an expert, seek recommendations from attorneys who have litigated similar cases.

When you hire an expert, be clear about what you expect the expert to do. If you don't discuss the expert's fees, you may be surprised at how much you are billed for the expert's services. Keep the expert appraised of trial dates, so that scheduling conflicts can be resolved early.

Ask an expert for references, and follow up on the references. Find out how well the witness performs at deposition or trial, before making a costly error.

Know how much your expert charges, and when you will have to pay additional charges (such as "rush fees").

Use your expert to help you develop your case. If you know as much or more than your expert, you are wasting your money. Only hire experts who know more than you, and use their knowledge to build your case. For example, experts can often help you draft interrogatories prepare questions to ask at your depositions of your opponent's experts. Although you have to pay the expert for his time, you may find that the time you save is worth far more than the amount you pay. Also, a good expert will come up with questions and theories that you are unlikely to discover on your own, without investing a vast amount of time and energy.

Know the rules of discovery. If your expert prepares a report, know if you will have to turn it over to your opponent. In Michigan, your opponent may not be able to secure an expert's report in civil litigation, but a prosecutor can obtain your expert's report in criminal litigation. Let the expert know what portions of his file constitute "work product," so that confidential material is not accidentally disclosed to your opponent.

Don't prematurely destroy the other side's expert. In one notable case, a bright yet inexperienced attorney did a remarkable job of demolishing the credibility and conclusions of the expert at deposition. At the end of the deposition, he gloated, "If you're going to take this case to trial, you had better get a better expert." The opponent did just that, and won at trial. Had the attorney saved his devastating impeachment for trial, he probably would have won his case.

Cost isn't everything. The least expensive expert I have ever used gave one of the best trial performances I have ever seen. The jury respected him and believed him, and his "plain language" explanation of some complex technical issues was a decisive factor in obtaining a verdict in my client's favor.

Tips for Expert Witnesses

Get a written agreement with the attorney, specifying your rate of compensation. Get a retainer for your services, as you may find it difficult to collect fees later. Your agreement with the attorney should specify that you may refuse to perform additional services if the attorney has not paid your fees for prior services.

Protect your credibility. Tell the attorney, during your first conversation, that you will form an independent opinion based upon the facts, and that there is a possibility that your opinion will not support his client's case. If the attorney is looking for a "hired gun" who will make the facts fit the desired conclusion, you are better off declining the case and preserving your credibility.

Try to maintain balance, by representing both plaintiffs and defendants. If you always represent the same side, you risk looking like a "hired gun," even if you are very careful about the clients and cases you take.

Maintain a list of the articles you have published, and the cases where you have testified. Keep copies of your publications, and of your prior testimony, for your clients to review. An attorney will need that information, in order to prepare for litigation where you may be challenged with your own writings and testimony. If you no longer hold some of the positions you have taken in prior litigation, or in past writings, let your client know so that he is not surprised when opposing counsel attempts to impeach you for "contradicting yourself."

If you are inexperienced as an expert witness, you should know the following for deposition:

Know the legal issues. Speak with your client about the legal issues, and get comfortable with the legal terminology for your case.
Only one person may speak at a time. Everything you say at a deposition is being transcribed. The court reporter cannot make a good record when people interrupt each other or talk at the same time.
Only answer the question that was asked. Ordinarily, after you have answered the specific question that you were asked, you will not want to volunteer any additional information. Even if opposing counsel sits silently and seems to expect you to say more, don't fall into that trap. If opposing counsel wants more information, he will ask a follow-up question. Get used to silence, even if it makes you uncomfortable -- it is your job to answer questions, not to fill silence.
Think before you answer questions. Whether on direct examination or cross-examination, think before you speak. It is almost always better for there to be a short pause before you answer a question than for you to give a bad answer.
You will be asked "hypothetical questions," which may be unfair. Opposing counsel may ask you to assume facts, and explain how your opinion would change if those facts were true. Do not assume that the facts are true -- the attorney may be trying to confuse you, or make you doubt your findings.
It is okay to answer, "I don't know." You may be surprised at a deposition. I heard a toxicologist complain that he was asked how his findings would be affected, on the basis of a source of contamination that he learned about for the first time during his deposition. He was flustered, and testified that the contamination "could have a substantial effect" on his conclusions. When he calmed down back at his office, and analyzed the new information, he found that the effect was in fact minimal. But it was too late for him to fix his testimony, and his client lost confidence in his ability to testify. The case settled for less than it was worth, and he had to fight his client to get paid. Had he answered, "I don't know," or, "The analysis is complex, and I will have to perform a new set of calculations before I can answer that question," he would have avoided a costly mistake.
Do not overstate your client's position. An overstatement can devastate your credibility.
Pay close attention to questions. If you don't understand a question, ask for it to be repeated. You cannot help your client by answering a question that you do not understand.
You were not hired to impress people. You were hired to persuade people. It may be possible to do both, but if you must choose between looking impressive and being likable, it is better to be liked. You should think of yourself as an personable teacher, not as the ultimate arbiter of fact.
Try to make your testimony understandable, and avoid technical jargon, but do not be imprecise. If you are testifying about an "adhesive" failure, you will not ordinarily want to refer to the adhesive as "glue" without first making a clear record of the differences between an "adhesive" and "glue," and explaining that you are using the wrong term to make your testimony more understandable. Otherwise, you can expect opposing counsel to use your testimony against you, to argue that you don't know the difference between "glue" and an "adhesive."
Don't follow opposing counsel's lead, if he is leading you astray. Staying with the "adhesive failure" example, opposing counsel may repeatedly refer to the adhesive as "glue," in the hope that you will follow his lead. The short-term goal is to trick you into believing he is unsophisticated about the scientific issues, and the long-term goal is to be able to argue that you don't know the difference between "glue" and an "adhesive." Make a record, early in the questioning, that the substance at issue was an "adhesive," and that you are assuming that the references to "glue" are in fact references to the adhesive.
Listen for "red flag" questions. If opposing counsel asks you a question that sounds like "legalese," it may be an effort to trick you into making a damaging concession. If you know the legal issues and standards governing the litigation, you should be able to avoid this type of trap.
When it is possible to be definite, be definite. If you always start an answer with, "I believe," or "In my opinion," the effect may be to suggest that your opinions are imprecise, and that it is perfectly reasonable for people to disagree with you.
Be careful about accepting the opponent's facts. During a deposition, opposing counsel is likely to ask you to agree with certain key facts. You should discuss which facts are "certain" with your client before the deposition, so that neither of you are surprised. Make sure you understand which facts are in dispute, so you don't accidentally concede a point which damages your client's case.

Aaron Larson

Attorney at Law

Expert Witness Practice

Tips for Attorneys

Tips for Expert Witnesses

Disclaimer