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!