Traveling with an Expert Witness (15) or No Longer a Newbie!

It has been one year since I last contributed a blog to my website and to my account on LinkedIn. Much has happened since then, including my decision to change the title of my Blog from “Traveling with a Newbie Expert” to “Traveling with an Expert Witness”.

I started my current career as an expert witness over five years ago, handling just one case a year for the first three years. My full-time job was enough on its own to keep me busy, but I managed to devote some weekends and evenings to exploring my new adventure.

It’s now been five years (!) and in the last two I have had the honor of being selected for twelve cases in six different states. I’ve experienced life on the Plaintiff’s side of the table, been deposed and even had my first trial. While all of these opportunities mean that I am no longer new to the work, I am still definitely learning, and so I am happy to continue sharing my experiences with any folks who are interested. All three of you…….!

In 2022 I worked on eight cases, which anyone reading this might think is not very many. I can tell you though, I was pretty much steadily working non-stop. One of the most important cases I completed is the one I addressed in my last Blog post a year ago. This case was my first Plaintiff’s case, but it also turned into my first trial as an expert.

Talk about turning into jelly!!!! My God, my knees were absolutely clanging together. I was very lucky though that the attorney I was working with was kind, patient and highly prepared. We spoke the day before the trial so that I could ask him questions about what to expect in the proceedings. (I had been subpoenaed and had testified in a trial when I was in my thirties, which was way too many years ago.)

I also took advantage of trial testimony training through the organization SEAK, which offers online training for experts. The instruction was invaluable for anyone who is unfamiliar with the language of trials, the pomp and circumstance (stand up when the Judge comes in!), and common pitfalls to avoid if you are nervous and new to the experience.

I definitely felt more comfortable as my testimony progressed – most of my stumbling was over describing my own education and work experience – probably because I didn’t spend much time going over it, thinking that of course I would know my own information….well you’d be surprised. (Trial lawyers would not!)

My testimony at the trial lasted no more than 3 hours, but depending on my memory of the day lasted an eternity or was over in a heartbeat. Almost one year later I am unbelievably grateful to have had the experience – I’m not saying I won’t be nervous in the future, I just learned a great deal, including the following:

1) There is no such thing as over-preparation.

In the weeks, days and hours leading up to the trial spend as much time as you can refreshing your memory. For experts the devil is definitely in the details. That said, do not bill your attorney for the amount of time I am suggesting you spend. Yes, preparing for trial is a billable task, but if you bill for all of the hours I am suggesting you spend you might have a very short career as an expert.

Highly experienced, in-demand experts are in a league all their own- they are comfortable and skilled at trial and can probably bill whatever they like for their time, knowing it will be worth it. I am addressing those of you who, like me, are getting your feet wet for the first time. To you folks I am telling you, read, read, read. Practice in front of the mirror, or with a friend or take a class like I did. You won’t regret it.

2) Every judge is different.

Judges are like anybody else – they have good days and bad, they can be cranky or sunny, they can be patient or easily annoyed. Your lawyer usually knows all of the judges and is the best person to instruct you on what to expect. The judge in the trial I participated in was definitely on the cranky side, but he seemed to recognize my lack of experience and most of the time let me express my opinions in my own way. In other words- I’m a talker (not a surprise to anyone reading this who has known me for longer than an hour). However, I definitely hope to get better at giving testimony in the future knowing that I cannot rely on the patience of judges.

3) Just be yourself.

I am blessed with having two good friends who are attorneys. Knowing my nerves were jangled, they both called me the night before. (I was pacing in my hotel room until 1:00AM!) They each said the same thing - just be yourself. It was my last thought before I went to sleep, and my last thought as I took the stand. Luckily the judge also let me be myself.

4) Look people in the eye.

Part of “just being yourself” is connecting with the jury. You really need to look at the people you are talking to – because if they aren’t following your testimony you want to be able to reword your opinion so that you are understood. Some jurors were literally on their phones (hiding it under paper) or were sleeping, God forbid. I just leaned into my prior years of training employees and pushed to make sure people were engaged and listening. I think it paid off.

5) The side you represent doesn’t matter as much your belief in the merits of the case.

I cannot stress enough how important it is that you believe in the opinion you give on a case. When you are giving testimony, if you are unsure, evasive or trying to fake it, people will see right through you. You will end up spending more time worrying about the questions that you will be asked then about what the judge and the jury need to know about the case.

Shortly after experiencing my first trial as an expert I ended up turning down a case that I had been recommended for. After listening to the attorney explain the incident that led to the lawsuit I knew I could never support and defend the agency that was being sued. I knew I was not the right expert for that particular case, but only because I had learned such invaluable lessons by testifying at trial as an expert.

Well folks, that’s it for now. Next time I will write about taking cases from other states……there’s definitely lots of minefields to avoid!

HAPPY 2023!

Traveling with a Newbie Expert (14)- Switching Sides

Well, here we are moving into February and all I can see when I look out the window is the same “blanket of snow” (now at least two feet deep and more on the way) I’ve been looking at for weeks now. Lucky for me I received an emergency call* from an attorney with an interesting challenge. After their previously selected expert had to unexpectedly withdraw, the attorney needed someone willing to step in quickly as trial dates were fast approaching and the opportunity to submit expert reports was at hand.

As I was returning the attorney's contact, I had a moment’s hesitation- the case they wanted to discuss with me would be representing the plaintiff's side of the table, not the defense work that I have done for the last four years. So why? Why was I concerned about doing plaintiff's work rather than defense?

In my opinion, (and please- for the handful of people who are reading this - it is just my own opinion- put away your verbal hatchets!) there are a couple of good reasons why a new expert should proceed carefully when accepting plaintiff's work.

First, keep in mind that plaintiffs are often really, really angry, frustrated, and/or hurt. These are people who feel deeply that they have been wronged, or their loved one has been wronged. With emotions running at full steam, they can become completely focused if not obsessed with seeking justice. (Really good plaintiff's attorneys know how to tap into that emotion - "I'll make them pay!" is a pretty familiar phrase to those of us in Cleveland.)

So why is that something to be wary of? Well, an emotional, angry client may not be a client able to set aside their feelings to focus with their attorney on where their case is its strongest. To effectively present a case, their attorney needs to anticipate what the defense is going to say or present. And the defense usually has the advantage of not only deep industry knowledge, with all its rules and regulations, but they also have extensive access to records and any staff members who may have been involved. Keeping a cool head while counteracting those advantages can be a very hard task for someone who has gotten this far in the process because of their anger.

My second and more fundamental concern is financial. An expert witness on defense is typically paid through the company's insurance, whether the case is won, lost or settled. This is because, once the attorney has selected an expert, they forward the information to the insurance company who ultimately approves the choice, and accepts the cost. In other words, this is a deep pocket.

On the plaintiff’s side, things are a bit different when paying for an expert. Typically, the law firm will cover the cost and reimburse their firm from monies received after winning the case. Less typically, it may be an arrangement where the plaintiff themselves must pay for the expert, along with the cost of conducting depositions, the court reporter, or any number of the expenses created by litigation.

So, what happens if the plaintiff’s attorney does not win the case or settle it with a sizeable award? Well, technically, plaintiffs must now cover the costs of the expert. And that said, a disappointed plaintiff might not want to, or even be able to pay the expenses for a lost case.…….which sums up the main reason why I have been cautious.

So, what advice do I have for a newbie expert who is contacted to work on the plaintiff's side? Well, obviously the first step is to start with the merits of the case and determine whether you are the right expert and feel you can effectively support your client’s position. For me, after I had listened to the attorney’s description of the case, it was evident that their position was very strong. I knew that despite my lack of familiarity with the plaintiff’s side, my experience and proficiency on defense would provide me with a significant advantage in identifying the mistakes made by the agency. Box checked!

Once satisfied with the merits of the case, for me the next step I took was to research the law firm. I needed to get a feel for who I was working for and whether it would be a good fit for us both. As it turned out, the attorney who contacted me works for a prestigious firm that operates on the east coast. I read a number of articles about the firm and definitely had the sense they are well established, conservative and had successfully handled a number of high-profile cases. Box checked!

The last recommendation I have for a newbie working on the plaintiff’s side is to confidently find out who, when and how you will be paid for your services. And don’t forget to get it in writing! For me, I have included an area on the bottom of my fee schedule, where if I am selected, I ask that the attorney sign and date the document before returning a copy to me. The plaintiff’s attorney returned my signed document within an hour of my submitting my fee schedule. Final box checked!

And so, with all of my concerns assuaged, I agreed to take the case. I turned in my finished report just three weeks after receiving all of the documents and honestly, I’m feeling it was some of my best work. Now that I have experience with plaintiff’s work, and a clear plan on assessing and managing any concerns, I don’t think I’ll hesitate quite so much the next time I am called to serve!

*I was found through my advertisement in the SEAK expert witness directory. I’ll talk about some of the various marketing options for experts in a future blog – I’ve certainly made some mistakes, and it's important to be CAREFUL with your money!

Traveling with a Newbie Expert or ……..Back in the Saddle!

Well, sorry folks- it has been two months since I could get back to any type of “normal”. For those of you out there who also have been left with the responsibility of a parent’s estate, you have my profound respect and sympathy. It’s an amazing amount of work!

All that aside, I was able to complete one of my cases during the last couple of months as well as start a new one. So, I was at least not completely unproductive on the business side of things. In fact, a timely discussion with the attorney from my last case falls directly in line with where I left you all- staying in your lane and what to do when your research uncovers more problems.

It is fair to say that I have a deeply analytical side to my personality. It is probably one of the things that appealed to me most about taking on the work of an expert witness- I can really relate to the investigation process as I had a steady diet of investigating incidents for several years in my career.

In my industry, social services, there are an unending number of documents. So, much like the medical field where everything is captured for the record, social services agencies must memorialize their work, and it is often duplicated in several different places.

When first reading through a case (I like to start with the Complaint) I will immediately write down all of the documents that I think will be relevant to my review. Then, working with the attorney I will start to go through whatever information is provided that has already cropped up through discovery or in the depositions. Most of the time I find that what I am looking for has not yet been pulled for the attorney’s review. And that is usually because neither side knows specifically what to ask for (which is why pulling in an expert as early as possible is the smart way to go).

Once I have reviewed what was provided and asked for any missing information, what happens if I uncover what might be critical information that doesn’t technically fall under my area of expertise, but is within my experience? Is this a good thing, or a bad thing?

Let me give an example from my own experience. For about eight years I administratively oversaw four divisions in three separate, but affiliated behavioral health corporations. These divisions included Risk Management, Quality Assurance, Human Resources and a non-profit Pharmacy.

Each of the divisions involved understanding a wide range of rules and regulations, but the daily exposure to overseeing the pharmacy led me to a fairly good understanding of psychotropic medications, types, dosages and side effects, for both kids and adults. Does this make me an expert? No, but I do know enough to have a very strong interest in the influence of these medications on the cases I am reviewing, particularly as both individuals with Severe Mental Illness and/or Intellectual and Developmental Disabilities tend to be prescribed extraordinary numbers of drugs at often extraordinary dosage levels.

When recently faced with a confusing death case, I took a detour into the medical reports, autopsy documents and nursing notes. Knowing what I do, I saw that one of the medications was prescribed at double the maximum recommended dosage. In addition, the medication was combined with another that when taken together could produce significant medical side effects.

What to do? I am not a pharmacist and could not touch that information with a ten foot pole, (I have zero desire to be skewered by opposing counsel and experts). What I did do was bring my suspicions to the attorney, who listened thoughtfully and then reminded me to “stay in my lane”. Was I offended? Not really. The advice was sound and a timely reminder, HOWEVER, I did want to impress on this attorney that seeking an expert in the medical field could be advantageous. (They did end up following this advice from me- which proved to be instrumental- so hooray! But one more important comment - I did not bill for the time I spent looking at the information that technically was not in my purview - so beware of the curious mind- you might lose both time and money.)

It is a fact that many of us who become expert witnesses have had lengthy careers that have crossed several industries and organizations. That exposure provides a wide range of knowledge and experience….but not necessarily expertise. Knowing how to stick to your area of expertise is critical however, it is never a bad thing to use your experience to assist your attorney. Just be careful not to spend too much time as it is mostly unbillable, and DO NOT address these opinions in your report, no matter how tempting.

Welcome back to the journey Newbie Experts!