Why Do They Call Us Expert Witnesses? Part II
Reprinted with permission.
Why Do They Call Us Expert Witnesses? Part II
By Allan Griff
Part 1 explained how experts and clients (attorneys) get
together and what the experts may be expected to do. In this part, I’ll go over these things in a little more
Documents: How Much Is Too Much?
Much of the expert’s earnings will come from the reading of documents. Some attorneys think they
can save their clients money by sending minimal documentation to the expert, while others may overwhelm the expert
just as they may be overwhelmed themselves by the torrent of documents that are produced in the case. One
strategy, in fact, is to drown the opposition in paper – since they have to produce, they’ll produce everything,
including expense slips, fax cover pages, memos announcing meetings, and stuff which may be appropriate to a
criminal investigation, but not a situation with limits of time and money.
Make sure you get to see the
complaint. The attorney may have explained it to you, but it’s good to see the actual words, and it’s good to get
experience reading legalese.
Then there are interrogatories -- questions and answers that are part of the
discovery process. Most of these are formal posturing of both sides – answering is too burdensome, or irrelevant
(when they really have decided “we’re not going to give them THAT!”) and your attorney may have to filter out the
answers relevant to your role in the case.
Sometimes the documents don’t come to you, you go to them. I recall a case where my opponent was ordered to
let me into their file rooms for as long as I wanted, where I could look at whatever I wanted. When I got there, I
entered a windowless chamber filled with at least 100 four-drawer file cabinets (before the days of computers),
but I had no way of knowing what was in each one. They hadn’t been ordered to help me, of course. I was there two
days, including evenings (which must have annoyed the guard who had to stay with me as long as I was there – I’m
an owl and can stay up all night if necessary, and the room had no windows anyway, so like a casino, you didn’t
know what time it was). I marked a bunch of documents for copying; the copies never came, but the case was settled
without them. Fortunately, I made notes as I went along, and was able to access relevant matter that way for use
in my expert report, which may have helped in pushing the settlement our way.
Another form of going to the
documents is going to the scene of the “crime:” the factory where the allegedly defective product was made, or
where the allegedly unsafe machine caused an accident. These visits are very important. Don’t waste time – get all
the information you can, and don’t expect to get back in there again. You’ve been admitted under order, and people
may not be as cooperative as you’d like. Bring a camera and take lots of pictures (if your attorney approves).
Read up as much as you can about what you expect to see – go on the company’s website, read the tech literature if
any, maybe even go to see the products in service or on sale beforehand. Things happen fast in such visits, and if
you go in cold, you’ll come out lukewarm.
Depositions are another thing you’ll have to read. Take notes while reading (see Part I for more on notes), and
re-read the notes just before you do an expert report or are deposed yourself. It may also pay to Google the
opposing experts, as you may find out things and relationships not brought out in deposition. This is especially
worthwhile before an opposing expert is deposed, and is one way an expert can be pro-active in helping his
attorney. Example: I once found a dissertation written by a student of the professor/ expert under his direction,
with content that challenged his testimony.
It’s difficult to read a deposition in one sitting, especially
if you are taking notes. Mark the times of starting and stopping in the margins, so you can later show how much
time it took. It may surprise some attorneys how long it takes to thoroughly read and digest a deposition (you’re
the expert, how come it took so long?), but that’s what thorough means, and if I am the expert, I may be able to
see things that are not so obvious.
Cases don’t exist in a vacuum, and sometimes there are other related
cases and depositions or other documents available that bear on your conclusions. The attorneys may be able to
provide such auxiliary information, or you can get it on the Internet.
If It IS Broke, Test It
In product failure cases, look for relevant tests on relevant samples. Literature references to typical strengths
or other properties may not be enough, especially if the material was degraded or otherwise compromised and is no
longer “typical.” If in doubt, test it yourself, or use a testing lab whose results will stand up in court.
Don’t take one example of failure, or worse yet, some allegation based on theory that the product “should have
failed,” as evidence of basic inadequacy. Use the doctrine of “habeas crappus” (produce the crap) and make sure
you see systematic, repeated failure. A bit of testing wisdom: if repeated tests using the same lot of material
give similar results, that material may be at fault. But if there is much scatter to the results, including a few
good ones, the problem is probably not the material but rather something less predictable, like contamination or
faulty test apparatus.
Hey Joe, Whaddya Know (Expert Reports)
Somewhere along the line, a deadline is set up for the expert to produce a report. There are guidelines for
such reports, some of which is custom, and some is required by law and the particular jurisdiction. The expert
report is very important, not only for its content but also because it is often the outline of the expert’s
deposition, if that is taken. There are preliminaries such as a professional biography and a confession of fees, a
list of documents read and things seen (sometimes visits made) that were used to arrive at the conclusions, and
often a list of the expert’s publications. I’m not sure whether this is there to impress juries (who seldom see
it) or other lawyers, but I’m always suspicious that a long list of publications implies lots of graduate students
doing research under the expert’s direction, which may or may not bear on his ability to comment on the situation
at hand. Some cases (such as patent infringement) may relate directly to the research, but for others, life in the
lab is a barrier to the real world, not a residence.
Finally, there are the conclusions. The report must be written by the expert him/herself, and you may well be
asked under oath if anyone wrote it for you, or helped you write it. No, no one wrote it for you, but it’s OK to
admit help. What kind of help? Well, help in conforming to the required form, and maybe reminding the expert of
some produced documents that might help formulate opinions. No, no one told you what to conclude or opine (lawyers
like that word as a sort of guess with foundation). Anything that sounds like the expert was steered to his
conclusions should be avoided, and will come back to haunt you as discrediting your otherwise legitimate
conclusions. Of course, by this time, you should know enough about the case to know what kind of conclusions the
lawyers want you to make, anyway.
Therein lies an ethical problem. What if, after reading all this stuff,
you think that your attorney’s client is wrong, or even that the situation is ambiguous and you cannot discern any
clear favor of one side over another? The answer to this is quite clear; it may hurt you (and your income), but
tell your attorney what you think, preferably on the phone, and as soon as possible. He may want to get you off
the case, or he may not care, or anything in between, but at least you can look at yourself in the mirror. This
isn’t as easy as it seems, as your attorney, having invested time and money in you, may want to talk you out of
those critical opinions. Listen, and maybe he’ll have a good point, or maybe not. But at least the air is cleared
of silent deception, even if it is left open to other forms.
The co-author of the famous writing guide
“Elements of Style,” William Strunk, was reputed to have said (note legalistic pussyfooting) with regard to public
speaking: “If you’re not sure of something, say it loud.” I’d add: “or don’t say it at all, but don’t waffle.”
Don’t use words like “probably,” or “I guess” or any other kind of verbal mumbling. Your own attorney should comb
these fuzzies out of your work, but you can help by avoiding them in the first place. And don’t cite unpublished
conversations with others, unless the others are also witnesses and subject to cross-examination. Otherwise, what
you remember that someone else said is not very useful. It’s funny that courts hold expert opinions and writings
as sacrosanct, but don’t trust our memories!
Citations of existing documents are useful, as are supportable
(published, reliable-sounding source) numbers of almost any kind. Beware, however, of percentitis (“inflammation”
of percentages to absolutes). This is a common form of deception and obfuscation (look it up now if you missed it
in Part I) and is easy to expose if not supportable by real values.
Should you give the report to anyone
to check over before sending it to your lawyer? Another ethical problem. Certainly don’t show it to anyone with an
interest in the case, as this may even be illegal, and if uncovered, may mess up your status and give the
opposition some technicalities to stall with. Check on the details of the confidentiality agreements you signed.
Bouncing it off your spouse or uninvolved friends may help with spelling, grammar and clarity, but no attorney
will approve of that either. Maybe it’s best to use the attorney as the sole critic, or maybe not. That depends on
how much he/she knows, Joe.
(To those too young to remember when this section’s heading was a popular
phrase, it’s a line to be followed by “I just got back from a vaudeville show” or “I just got back from Buffalo...
or Kokomo, etc.”)
The Mad Rush, Or The Seventeen-month Locusts
You know about those bugs – they sleep for 17 years and suddenly awaken one spring and buzz madly for a
while, and then die, but not before they’ve bred another generation, to sleep, awake, buzz, mate, etc. In many
cases, once you have read all the stuff, nothing seems to happen for a long time – 17 months is not unusual (but
17 years is) – then you get a call telling you that your expert report is due in 3 weeks, or that you will be
deposed on such and such a date.
You do have some control over your own deposition, as some days you really can’t make it, but you can’t
push this around too much as lawyers may meet in a city to take more than one deposition at a time, and don’t want
to make an exception for you. There are cases where the lawyers go to the expert instead of vice versa, and I’ve
heard of recorded telephone depositions, but the acceptance of those is a matter for courts and lawyers, not us
The court deadlines are even harder to move, as they depend on many things even beyond your
attorney’s control, and barring major illness, you’d better get a report in by then. If something isn’t ready by
then, ask the lawyer if you can amend it later, but don’t put the uncertainty or incompletion into the report. It
should stand as a complete document as submitted.
Which Track Are You On?
attorney managing the expert’s work is somewhat like a person trying to ride two horses at once – a feat
reportedly achieved by the last queen of Hungary, but not many others. Since almost all cases are settled out of
court, and since so many litigants prefer this resolution for expense reasons if no other, it would seem logical
that the experts’ work be directed toward this end – educating the attorneys in their areas of expertise, looking
for holes in the opposing case, and making the opposing attorneys believe that we know so much that their client
better settle as soon as possible.
But the attorney-manager must also be aware of what looks good or bad
to a jury, things which could be disqualified at trial as hearsay or speculation, bits of the report or deposition
that could be replayed at trial that seem to question or contradict the expert’s opinions, and even the physical
appearance and demeanor of the expert. I once received coaching in trial performance, including review of my own
videotapes (in a case heard in Los Angeles, of course).
That ends Part
II. I hope that you readers have learned something from these writings, and that if you have further comment, you
send them on to IMS. They eventually get to me. I pass on here some comments on Part I with my additions:
a) Don’t accept and promise to read case information until completion of non-disclosure papers and receipt of a
nonrefundable retainer. Agreed – and if an attorney balks at paying first, you can say that you are not
distrusting the attorney, but you are aware that financial relations between attorney and client are often
complicated, and that you can’t take the risk of the client saying he won’t pay for you after you’ve done the
work. If the attorney agrees to cover the payment even if the client backs off, that may be financially OK, but
I’d worry about working with/for that client. It might be wise to include in the contract a term that says
“payment is due for all time devoted to this case, and is independent of its resolution or the expert’s opinions
and reports. If the client wishes to terminate the relationship, all work will stop upon notification, except as
otherwise mutually agreed, and there will be no refunds of payments already made.”
b) Destroy everything
from past cases, as it may be discoverable in future cases. In principle, that sounds good, but I’m a saver, and
it’s hard for me to throw anything away that might have a future use. I eventually throw stuff out, but no-one has
bothered to ask me for it, and most of it is comprised of documents already produced anyway. People who are
experts in a large number of related cases may have to be more careful about this.
This article was originally published in
BullsEye, a newsletter
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