Traveling with a Newbie Expert (6) Moving towards success

There are a few organizations that are available to Expert Witnesses, whether experienced or like me, just in the first few years. One that caught my eye early on is SEAK. Seak is a continuing education, publishing, marketing and consulting company that works with experts in all specialties.

One of the facets of the company that I have personally enjoyed is the abundance of white papers, resources and articles that offer explicit advice (next week's topic - how do I figure out what to charge??) and general good sense information.

One article that I came across on LinkedIn was written last August by Bruce Burk. His article which I am including below is well worth the time to read if anyone is serious about looking into this field.

Wait......that isn't quite right. The advice in this article is good for ANYONE. The qualities that Burn describes can be adapted to any employment situation. Being confident, knowing your field (do your research!), paying attention to the details and being trustworthy- these are qualities helpful to any employee. So maybe you don't want to be an expert, but you are

looking to either take on a new challenge, change industries, or have your eye on a promotion....please read on! And for those of you out there who are interested in becoming an expert - take the time to look into SEAK and particularly their Expert Institute. There is a wealth of knowledge just waiting for you.

9 Personal Qualities You Should Look for in an Expert Witness

Updated on August 12, 2020 Author: Bruce Burk

When attorneys look to hire an expert witness for their case, they look for certain qualities that they believe will result in a win for their clients. In any area of the law, the quality of expert witnesses can range from excellent to very poor. Moreover, attorneys can spend thousands of dollars for an expert opinion that they need to prove their case. But while obvious qualifications such as an expert’s education, skills, and work experience are reliable, objective indicators of an expert’s suitability for a case, there are a number of intangible, personal qualities that are equally important to consider. This is why many attorneys look for the following list of traits in expert witnesses to make sure that they have an expert whose opinion will be believed by the judge or jury.

1) Confidence

Confidence matters. Expert witnesses are subject to depositions and are often cross-examined by opposing counsel regarding how they came to their opinion. What is more, expert witnesses may have to testify in front of the judge or jury and their opinion needs to be believed by people who are not familiar with their area of specialty. A confident expert sends a message that they believe their opinion and that means the judge or jury should as well. An expert who is not confident about their opinion can send a message that the judge or the jury should have reason to doubt what they are saying which may cause them to look to the other side’s expert.

2) Rigor

Expert witnesses need to have scientific or specialized knowledge that is the basis for their opinion. Many times, an expert will say that they base their opinion on their years of experience. However, if you are dealing with a scientific or medical opinion a Daubert objection could potentially be raised if they have no peer reviews or research journals to use to support their opinion. In hiring the expert witness, you should ask what type of research that they looked at or relied upon in forming their opinion or if their methods are also used by other members of their specialty.

3) Consistency

An expert opinion is delivered primarily in three stages. First, you have the time where the expert prepares a report, documenting their findings, and the methodology they used to obtain them. Second, there is the deposition where the expert testifies regarding their opinion and is cross-examined by opposing counsel. Third, you have when the expert is testifying in front of a judge or jury. Many expert witnesses testify in multiple cases and they may not remember everything they say in their reports or in their depositions. This can cause inconsistencies which can be pointed out by the opposing party in order to diminish the opinion of your expert. This is why it is important that your expert is consistent through the entire process of preparing of the report, the deposition, and testifying at trial.

Consistency also matters from case to case. Let’s say an expert gives an opinion on the causes of heart disease in one case where he says that smoking does not cause heart disease. Then, let’s say he gives a second opinion where he says that smoking can cause heart disease. Let us further assume that we are in a county where the law firms talk to each other and exchange transcripts of depositions between cases. This opens to the possibility of your expert witness’s opinion being impeached by an inconsistent opinion in a prior case.

4) Attention to Detail

In litigation, details matter. Whether you looking at a long list of medical records or a compilation of complex engineering schematics or patents, expert witnesses need to have a high level of attention to detail. The failure to exercise high attention to detail can result in the expert being crushed in a cross examination for failure to take the proper time to examine the facts before rendering an opinion. One of the most common ways to undercut the opinion of an expert witness is to point out all the things that were not done or not reviewed in rendering the opinion.

5) Trustworthiness

Expert witnesses need to convince others that their opinions can be relied upon. Trustworthiness begins with appearance. Expert witnesses should be properly and professionally dressed for their appearance in court or at a deposition. Expert witnesses should speak with confidence and should be attentive when rendering their opinion. Trustworthiness also means that they are not willing to ignore facts that are unfavorable to the side that hired them. Reputation matters when we are speaking about trustworthiness and experts should avoid rending ill-formed opinions that could damage their credibility.

6) Experience

All expert witnesses should have a detailed curriculum vitae that outlines their educational background as well as any licenses, publications, speaking events, and honors that the expert has received. Expert witnesses should have top-level educational credentials and should have stanched the level of experience in the area that they are rendering an expert opinion. While relevant professional experience is always a requirement in an effective expert, additional experience with public speaking, teaching, or other interpersonal activities can indicate that a potential expert will likely be a strong choice in a testifying role.

7) Effective Communication

Expert witnesses need to be good communicators. This means that they have to be comfortable using the technical language that is common within their profession. They should be able to speak without hesitation or needing to refer through records in order to render their opinion. Good experts need to be capable of understanding the questions that are posed to them by the attorneys and specifically answer the question asked. An expert who is a good communicator can summarize complex scientific, medical, or specialized facts in a concise way, which allows the judge or jury to understand what they are saying.

8) Dedication

One of the most important functions of an expert witness is the preparation of a detailed written report of their opinion. The expert report should compile all records that were reviewed in order to render the opinion and outline a concise summary of their findings and recommendations. Good experts will often ask you to send them records because they believe they need to review additional information to properly support their opinion. One of the techniques attorneys use in trying to diminish the opinion of an expert is pointing out things that they are testifying in deposition to which are not contained in their expert report. The expert report should be free of typographical errors and should have proper chronologies, or a list of all relevant facts that were reviewed to come to the opinion. Good expert reports also cite to relevant authorities in peer-reviewed journals or other sources to bolster their testimony.

9) Ability to Improvise

Finally, good expert witnesses need to be able to improvise. One of the most important times in litigation is when an expert witness is asked a question that they are not prepared to answer. Expert witnesses are often asked hypothetical questions that they are not prepared to answer and knowledgeable experts need to be able to come up with answers to complex hypotheticals on the spot. A common trick that attorneys used in order to diminish the opinion of an expert witness is to get them to say, “I don’t know” to a large number of questions. Expert witnesses should be able to think on their feet based on their training to answer questions they did not anticipate. However, they should always be careful to only answer questions that fall within their specific area of expertise.

Traveling with a Newbie Expert (5) Depositions are Scary! Part 2

Okay! So here we are…..you are now in the tough part of the questioning from opposing counsel and you have already been at it for about two hours and it looks like it will continue for at least another two. Your head hurts and you really don’t like the way this particular lawyer is making you feel and sound like an idiot. “I’m the Expert!” you keep reminding yourself………..while the little voice in your head says “when is this going to be over??”

So, what should you do? First off you can definitely ask to take a break. Step out, use the restroom, grab some water or coffee, and maybe take a minute to refresh your memory on any particular points. Sometimes if it is close to lunch time (hooray!) the entire group may decide to break for an hour- so if anyone suggests this, take advantage and use this time to reset your mental faculties.

Keep in mind that during the break your demeanor during questioning will have been a point of discussion or study for your inquisitor. Were you confident and cooperative? Were you transparent and forthright or did you become frustrated, defensive or evasive? If you believe that either the attorney’s style or some of the specific questions had been getting under your skin then speak to your attorney to get their take on the situation. It is very important to honestly appraise your performance and your delivery of key points, especially if you still have time to correct your course. And to that point, let me stress again the importance of Expert Witnesses knowing their case thoroughly. While the opposing attorney does not have your level of expertise in your field –they will have the advantage of knowing the facts of the case much better than you because they have been living it for many months.

When you are once again placed in the hot seat remain cool, calm and collected. Take each question one at a time and rely on your years of experience and in the hard work and time spent developing a deep understanding of the case. However, it is important to listen very carefully, and intently to the exact question you are asked. Once exhaustion sets in many deponents, including expert witnesses lose focus and start to answer cavalierly. Remember, many attorneys are highly skilled at wordplay and know to take advantage of these situations (which you would be able to gauge by reading the other depositions in the case!)

A good example of this is when an attorney will ask the same question in a variety of ways, hoping to create and then exploit inconsistencies in the testimony of an expert. If you believe that is happening or if you think you are being asked a trick question, stop and ask the attorney for clarification. There is nothing at all wrong with stating “I believe I answered that question earlier, but let me remind you of my response…..”

Again, if it is late in the deposition and you are growing tired you may be unaware that you are being led towards a contradiction in your testimony. In these cases you can often count on your own attorney to state “Asked and answered” before instructing you to go ahead and respond. This statement is an indication that you have already responded to the particular question and should be noted by you as a significant clue to what is happening.

Objections are also certainly something you will hear peppered throughout depositions and so should be expected during expert witness testimony as well. There are several specific objections that attorneys are allowed to make, and in some cases need to make (e.g., Form, Privilege) as failure to object at the deposition means waiving the right to do so at trial. One of the most common objections observed during depositions is “mischaracterization” which is actually a fancy term for when an attorney rephrases a question to the expert that is not what he/she testified to earlier (“Sneaky little hobbitses. Wicked, tricksy, false!”)

As your testimony wraps up, the opposing attorney will ask your attorney if you want to read the deposition prior to signing. In nearly every case it is my opinion that you should absolutely read. Not only may there be corrections needed, reading the transcript will prepare you for the next phase (God help us all) going to trial……………..!

P.S. Okay Newbies, we covered a lot of ground here but I want to end this with a completely random but important topic …….it is becoming more common to video tape depositions. So, take this as a gentle reminder for all of you (men and women!) to look your best at the deposition. Put on something that makes you feel extra confident – and if it happens to visually shave off five pounds, all the better! After that, just watch your facial expressions…….no sneering, lip curling, eye rolling or guffawing like a donkey. You can thank me later…………..

TRAVELING WITH A NEWBIE EXPERT (4) Depositions are scary! Part 1

For those Newbie Experts who are starting in this business already sporting a ton of prior experience in the courtroom, being questioned, or having your opinions challenged, the process of being deposed will be a walk in a very familiar park. For most of us though being deposed can be a daunting experience, and one that if handled badly can make or break a new expert. The good news is the key to a successful deposition lies in your own hands……and it starts with your report.

The most important thing to remember is that you are being deposed about your opinion. You will be asked to identify the documents you reviewed, who you spoke to and whether any published documents helped to frame your opinion. The smart thing to do is to write your report incorporating all of the above, because by doing this, you will have the information directly in front of you to refer to during the deposition. This will help to prevent getting thrown by a random question you hadn’t considered.

Write your report with these basic elements:

· The name of the case;

· Who you are and your field of expertise;

· A brief summary of the incident;

· Your professional opinion and the basis for your major points;

· A rebuttal of any expert witnesses from the other side;

· A summary statement;

· A conclusory statement;

· A list of every document you reviewed; and

· Any attachments such as your resume and other qualifications.

One thing I rarely see in other expert witness reports is clear and consistent identification of the specific document, page and line where information was found that supported or informed their opinion. It may be considered by some or even many experts that adding this level of detail to their report takes too much time. However, I have found that it is an invaluable method for recalling information quickly and consistently. Court cases involve hundreds and sometimes thousands of documents. To me, knowing exactly where I found the important information behind my opinion is well worth the time.

As I mentioned last week, another problem for experts is when they rely on other people’s research to form their opinion. In my mind this strategy, which is sometimes used by some of the busiest experts can really put them at risk if the colleague hadn’t done a thorough job. As a new expert witness, I believe you need to have your own “Ah Hah!” moment when studying a case in order to effectively respond when the questioning gets rough.

Once your report is submitted, your next job is to wait……and wait some more. Cases often move forward glacially, only to suddenly sprint to the finish line. When the action starts up again use this as a sign that you should get ready to be deposed.

Depositions follow a fairly standard routine:

· You will be sworn in

· You will be asked if you have ever been deposed

· You will be given instructions by the opposing attorney on verbalizing (no grunting!) and to ask if you don’t understand something.

· You will then be “warmed up” with a series of background questions identifying your history, schooling, family (why is this important??), and work history

· As an expert witness you may be asked specific questions about the nature of other cases you have worked on or the outcome.

At this point the attorney will most often begin asking you some general, easier questions which will be followed by increasingly difficult, complex questions related to the case, your understanding of the case and the basis for your opinion. As a part of this questioning you will be shown various Exhibits that you may be asked to refer to, explain or contradict.

The organizational structure and process of a deposition generally follows a predictable pattern, however, each attorney has their own unique style of questioning witnesses. It is for this reason that I want to emphasize again that new experts need to read as many (if not all) of the depositions you are given on the case. What you will learn about the attorney who will question you can be invaluable – think of this like a poker game – everyone has their “tells”. Reading multiple depositions conducted by the same lawyer will prepare you well for when it is your turn.

Next week- Part 2 of Depositions are Scary! Stay tuned!!!