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This week we will turn our newbie learning session into a brief but passionate plea for any new expert witness to take the time to read most if not all of the depositions in your case.

I will not lie- there are several negatives to doing this work. First, you cannot bill your client for all of this reading unless you are so very, very famous and renowned that people not only open their wallets to you, they literally fling money at you. So, unless you are that person (and we acknowledge you not likely reading this Blog), if you attempt to bill for all the time this takes, you will have very few clients going forward.

So… how do you approach this task? Here is what I recommend- open every single deposition you are given. You only need to read just a few pages to figure out who this person is, and what their role is in the case. Create an outline of the major players so you can keep everyone straight. I recently had a case with nearly 60 depositions to organize – GACK! (For the uninitiated, “Gack” is a reliable choking sound borrowed from old Warner Brothers cartoons).

Separate the depositions into three piles- those that are critical, those that might be important, and those that are generally unrelated to your area of expertise. For me this is often an expert medical doctor or engineer. Try as I might I do not speak medical or technical. That said, I will often skim through just to learn a little something new. Sometimes I have been surprised by how helpful this can be!

As you start to read your stack of critical depositions you will find that people’s “voices” and their intentions come across fairly quickly- the characters are taking shape. However, now is the time to remember that people lie. Sometimes it is a hard lie, “that isn’t me on the tape running away with the bloody hammer.” And sometimes it is a soft lie, “I heard someone yelling, but thought it was just an episode of Law and Order.” Most often it will be the well-known recall lie, which in a deposition is always “I don’t remember”. It is staggering how many normally intelligent people think that consistently saying they don’t remember is a great strategy. And yes, your attorney will say, “do not guess”….but that doesn’t mean it is okay to forget everything. To quote Tennessee Williams, “there ain’t nothin’ more powerful than the odor of mendacity.” (Which basically means, everyone knows what the witness is doing, which discredits them and often your client as well.)

Here is what is important- do not become seduced by reading just the stack of depositions that you have determined are critical, especially if you have become comfortable in the underlying facts to your opinion. If you do, you may find yourself seriously in trouble when it is your turn to be deposed.

Recently I read the expert report and deposition of a very well-known Expert Witness. Her pedigree was as long as my arm. Honestly – her resume was 12 pages long! Double Gack! During her deposition it came to light that her opinions on the case were based on two critical errors. First, she used her staff to assist with the heavy reading. In this system, the underling would summarize a deposition for the expert, who would then rely on this summary to help form her opinions. Sounds efficient, right? Wrong. You see the underling didn’t read all or even most of the depositions. The summary was adequate to just the depositions that were read, not to the full picture of the case. Had fuller reading been done, the staff would have realized that the information handed over to the expert had been specifically refuted through the testimony of others. Egg on face moment for sure.

The second mistake this very learned person committed was in heavily relying on the testimony of two individuals who were second bananas to the case’s star performers. Again, had she read all of the documents (depositions and records) she would have learned that both of the individuals she was relying on had lengthy drug and criminal backgrounds and one had a serious axe to grind against the defendant. All of this was uncovered by the lead attorney (brilliant lady!) who quickly exposed the Expert Witness as having trusted two crappy witnesses and a summary document by a staff person who had not done their homework. Goodbye sterling reputation.

Bottom line- depositions can provide critical information to forming your opinion, but having a suspicious and slightly cynical, investigative brain can save you from looking incredibly stupid. Put the work in!

Next week- being deposed is scary!!!

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  • Andrea Dobrin

And here we are, one week later and hopefully I haven’t lost the three people who read this Blog last week. Hooray! Victory!

When last I wrote we were on the verge of putting all of the research that was completed together and to start writing the Expert Witness Report. So… is when I would expect you to ask, “What does that look like Andy??” Well, read on…...

It is absolutely true that Expert Witness reports come in all shapes and sizes. After having read my share of other people’s reports I have discovered that the more letters a person has after their name the shorter the report unless they are in Social Services. Social Service experts will reproduce War and Peace and try to add Anna Karenina on the back end if they believe it will support their position. (Note the Russian references – so current!)

As a newbie to the field, the first few reports I constructed were very lengthy as well (clearly, I am exposing my own background in social services!). However, over time I figured out how to narrow my focus to just the key elements, the source of which can be found in the following places:

  • First, turn to your attorney. From the time you are solicited for your opinion, the attorney will help to acclimate you to the case and their reasons for seeking your particular set of skills. These conversations are critical to understanding not only the facts of the case but also some of the initial hurdles.

  • The second source is the Complaint document itself. This is probably the first document you will receive and is key to understanding what the Plaintiff’s attorney believes your client has done wrong. Focus on parts of the complaint that you (and all your experience) are required to address. Read this document carefully!

  • The third and a critical source of information for your report is located in the depositions of the parties. This is often one of the most painful tasks for an Expert Witness because the sheer number of depositions coupled with the length of each deposition is directly associated with the well known syndrome Expert Witness Hari Kari. All joking aside, this is the area where many Experts make their biggest mistakes.

  • Fourth in line are the other Expert Witness reports in the case. Read carefully what these folks have said, and if they can be refuted then take your best shot!

  • Fifth and last are all of the rules, regulations and policies you identified in your research. What rules were broken? Which support your client? It sounds simplistic, but what you are focused on can generally fall into one of three categories:

  1. What did they do?

  2. What were they required to do?

  3. What did they say they were going to do?

Next week we’ll take a closer look at reading depositions and why this can become the hill on which many Experts die…..figuratively speaking of course!

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  • Andrea Dobrin

When I was first approached by an attorney to step into the role of an Expert Witness I naively believed that the work would be simple, exciting and slightly glamorous. Afterall, I had many years of experience, am comfortable with writing a report and (always) have a lot to say……..

Three years later and after wading through several cases I can look back with a much clearer and far more cynical eye. Turns out I was dead wrong about much of what I originally thought. The work is neither simple or glamourous (it can be scary!), and having years of experience can only help if you have the innate ability to apply it to an endless variety of scenarios.

At least 50% of the work is spent up front with a ton of hardcore reading and research. I’m not sure that are other industries that produce as much documentation as the legal system, but I’d be hard pressed to name them. Gut check folks, it’s not just that there is a lot of reading- it is a lot of intense reading. There are often thousands of documents to review in order to identify the critical elements of a case, a good chunk of which you cannot bill your clients for…that is if you wish to continue having clients.

Closely following all that reading is the research. Do you really enjoy reading hundreds of government rules and regulations or technical volumes? (It turns out I do J!) If you are not someone who enjoys finding out all of the rules and regulations that apply to a situation- and I do mean ALL, then this aspect of the work will undo you as it is by far the most laborious and critical aspect of the work.

After digging deep into your analytical self and matching every regulation and standard to each element of the case, you now have to compile all of this information into some sort of cohesive discussion with the attorney assigned to your case. If I can impart any bit of advice to a new expert- keep the credo “no surprises” uppermost in your mind as you prepare to talk through your findings with the attorney. Focus on any holes in the case, and especially on any missing information – there is always missing information!

So here you are - you have read, digested, and prepared yourself like you’re eighteen and the SAT’s are coming. You have talked things over with the attorney and have located as much of the missing information as you’re going to get. At last, the bulk of the work is behind you! Hah! Guess again! And again!

Stay tuned, and travel along with me next week as we talk about the really tough and scary bits of being a newbie Expert Witness……

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