Expert Witnesses have been burdened by issues that hinder their ability to both perform and receive compensation for their performance. This post is a simple but practical guide to help Expert Witnesses overcome a few obstacles related to their work and help them become more efficient and effective .
Fee Collection. Perhaps the most problematic issue for Experts is collecting fees. There are many ways for this to become an issue. The attorney may fall behind in payments, may want to pay less if a settlement is smaller than anticipated, or may not want to pay at all if the case is lost.
- Get a written agreement which includes all of the terms and conditions and any consequences for failing to comply. In an article for Expert Witnesses, appellate lawyer, Aaron R. Larson, writes, “Your agreement with the attorney should specify that you may decline to perform additional services if the attorney has not paid your fees for prior services. “ This will allow for more security once the attorney engages the Expert. More time can be focused on the issues of the case rather than how and when the Expert will be paid.
“Hired Gun” Syndrome: Disparaging remarks made by counsel as to the ethics of Experts Witnesses has always been a bane to the practice. Merriam-Webster’s Dictionary defines a hired gun as, “an expert hired to do a specific and often ethically dubious job.” Credibility should be the number one priority. Here are two ways to protect your professional integrity:
- Prior to engagement, tell the attorney that your opinions will be based on the facts of the case and your testimony will not be compromised by the attorney’s desired outcome of the case.
- Perception is everything. If an Expert only testifies on behalf of either plaintiff or defense, than the Expert risks the perception of being a hired gun.
Depositions and Trial Testimony
- Legal Issues – Have an understanding of the legal issues in the case. Regardless of your expertise, the legal issues may vary from case to case. For example, a Biomechanics Expert may have to opine in a case regarding an injury. This injury may be negligent or intentional. In such a case, it is important to differentiate between the two legal causes of action.
- Do Not Interrupt – In order to have an accurate record, allow each person to finish before you speak.
- Silence Is Your Friend – Only answer the questions asked. Never offer more information than is required. If counsel asks a “yes” or “no” question, only answer with a “yes” or a “no.” Do not add fluff to fill the silence.
- Think Before You Speak – Take time to form an answer before you begin speaking. It is better to pause and be comfortable in the silence than to give an unsupported answer. If you do not understand the question, ask for clarification.
- “I Don’t Know” – If an Expert is caught off guard with new or hypothetical facts that have not yet been analyzed, it is better to answer, “I don’t know,” rather than state an unsubstantiated opinion that can damage the case.
- Check Your Ego at the Door – Experts are most effective when they are likeable! An Expert is more likely to be persuasive if they are well-liked.
- Simplicity is Key – Make complex explanations understandable.