Traveling with a Newbie Expert (10): Pitfalls Part 2
Hello Fellow Travelers!
In our last discussion we went over some strategies to use to ensure payment for your services. This week we’ll talk about another big pitfall that can impact a new expert witness - finding the balance between your client’s wishes and your expert opinion.
Very few cases are cut and dry. In fact, there have been only two cases in my past where the client I was helping had done very little to warrant their inclusion in the lawsuit. However, in both cases the clients were minor players in much bigger suits that had multiple attorneys and law firms involved. They were both what I would call “add-ons” to the lawsuit, which is fairly common when Plaintiff’s attorneys need to include any and all parties, and will wait for the facts to shake out those that should or should not be involved. While these are dream cases for an Expert, they are rare. Most cases are messy and include things your client did right and mistakes that were made.
When you are first starting out in this business it takes some time and a few cases to “find your voice” (or at least it should – beware jumping out there thinking that saying whatever your client needs is a good strategy!). Finding your voice is simply my way of saying that there is a delicate balance in messy cases between wanting to respond to the needs of your client and not writing a report or testifying to a position that you cannot confidently defend.
One strategy that seasoned experts use is to focus on the areas where they are certain of their client’s position and side-step those areas where mistakes were made. These professionals are also very good at knowing how to deflect the opposing attorney’s questions at either the deposition or trial. For example, some will state they only addressed “X” in their report and are not prepared to present an opinion on “Y”. CAUTION – as you are learning the ropes remember that too many of these types of statements can significantly impact your reputation and value. At best you will look like you had not done your homework, at worst that you are shady. Trust me- neither is good.
Another danger a new expert can face is in writing a report that includes a position that you are not fully committed to. What I mean is, at some point you may be asked to address an aspect of the case in a very specific way. While attorneys know not to direct experts, some do like to offer very strong advice on your report. There is nothing at all wrong with this, in fact it can be helpful.......unless you are not confident about the opinion you included in your report. Be aware - if you are questioned closely about this opinion when you are deposed you WILL. BE. BUSTED. So remember - there is a very fine line from having an attorney ask you to highlight certain facts of a case and directing the content of your report. 99% of attorneys know exactly where the line is, but you as a new expert may not.
My best advice on this subject - use your gut. If what you are writing makes you squirm inside, then take note and only write what you really feel you can go to the mat defending. And how do you do that again? As I have said in many earlier blogs, do your research and from the very beginning be highly responsive and communicative with the attorney you are working with. Know that part of your job is to make sure that your attorney knows where the holes in their case are based on your area of expertise. As the case progresses and you learn more from the various depositions and other evidence that is uncovered it is likely that your position will shift….which is OK! Attorneys understand this, and will often ask that you write your report after the depositions are complete and the other experts have weighed in. The key is in communicating regularly so that once all the evidence is in front of you, you are much better prepared to provide an opinion that is honest, defensible and highlights the aspects of the case you are fully committed to. And most importantly, your attorney will know exactly what you are thinking and why.
That wraps up this week folks – next week we’ll talk about two other pitfalls: 1) what can happen when your research uncovers significantly more problems (YIKES!!) and 2) the temptation of offering opinions outside your expertise.