Category: Expert Witness

DepositionExpert WitnessTestimony

Expert Witnesses – Practical Guide to Smart Business Practices

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.
Expert Witness

Expert Witness Work Product & Communications – Changes to Federal Rule 26

Unless Congress legislates to the contrary, the United States Supreme Court has approved amendments to Rule 26 which will take effect on December 1, 2010.  These much needed amendments affect Expert Witness work product and communications and became an issue in 1993 when the Committee Notes from Rule 26(b)(4) broadened their discovery.  The Committee reasoned that only by disclosure of communications, notes and drafts of work reports used by the expert could the fact finder determine how much of the expert’s opinion was influenced by the attorney.

These Committee Notes put the Expert Witness at a great disadvantage and forced attorneys to practice in murky waters.  Both attorneys and experts would go to great lengths to avoid creating a discoverable paper trail. In an article written for the ABA, Calvin Cheng writes that attorneys would go so far as to, “…prohibit experts from taking any notes, making any record of preliminary analyses or opinions, or producing any drafts of the report.”  It stands to reason that the quality of Expert Witness work product declined. In depositions, behavior by counsel trying to prove the existence of work product became egregious, costly and counter-productive.

The American Bar Association finally called for a change and the following amendments were created:

Rule 26(b)(4) will extend immunity to the discovery of draft reports by testifying expert witnesses and, with three exceptions, to communications between Expert Witnesses and retaining counsel.

Rule 26(a)(2)(c) would require an attorney relying on a testifying expert who is not required to provide a 26(a)(2)(b) report to disclose the subject matter and summarize the facts and opinions that the expert witness is expected to offer.

In the end, this seems like a fair compromise.  No longer will communications, drafts, notes, preliminary findings or opinions be discoverable under Rule 26(b)(4). Those experts specifically retained to provide expert testimony need only provide a final report for discovery.  Three exceptions to this rule apply but they seem fair enough: (1) Communications regarding expert compensation; (2) Data given by the attorney to the expert which was considered in forming his opinion; and (3) Assumptions provided by the attorney on which the expert relied in forming his opinion.

Those experts who are “not retained” but who qualify as Experts for a case need only summarize the facts that support their opinion.  In this way, they are not unduly burdened for their time and yet all parties are aware of what their testimony will include.

Save a few, the amendments to Rule 26 have been met with overwhelming support by attorneys and bar associations.  For Expert Witnesses, it means higher quality work product in a less adversarial arena.  In essence, these amendments are a win-win for both attorneys and experts.

Expert Witness


In the view of this pundit, it never hurts for Expert Witnesses to wear a little Kevlar under their suits. Many Experts do not know that there is a consolidated arsenal of information about them that is available to attorneys. This information can either bolster or undermine an Expert’s credibility.  All Experts should know that this data exists and that they also have access to it, albeit for a fee.

The information is based on public record and is compiled by legal databases using expert witness depositions, testimony and reports, case law, jury verdicts, dockets, briefs, and motions pertaining to the admissibility of expert testimony.   It comes in the form of an extensive, in-depth report which is a cost-effective, efficient way for attorneys to determine the following information on Experts and for Experts to be aware of what they could be up against:

  • Win/lose record when testifying for the Defendant
  • Win/lose record when testifying for the Plaintiff
  • If Expert is Plaintiff’s Expert or Defendant’s Expert
  • If Expert Witness qualifications were challenged and the outcome – admitted or excluded
  • The names of attorneys worked for and judges appeared before
  • The amount of awards won
  • If testimony was mostly in state or federal court

With knowledge as your armor, it is best to leave naivete at the door and enter the courtroom believing it is your battleground. Reports that offer a summary of an Expert’s past experience will not only benefit the attorney, but will prevent Experts from being blindsided by damaging questions of credibility.

Expert WitnessLitigation

Expert Witnesses – Early Case Involvement

An unfortunate practice among many attorneys is to wait until the last minute to retain an Expert Witness.  This has put a strain on the attitude that Experts have toward attorneys. As Expert Witnesses will tell you, waiting to hire them for their services can be detrimental to all parties involved in the case.  It burdens the Expert to perform at his best, sometimes having to process months of information and produce his opinion under unreasonable time constraints.  This is not to the benefit of the attorney or the client.  One Expert we interviewed had this to say,

…frustration mounts, anger sets in, and you quietly curse the Litigators for waiting until the very last minute to solidify your expertise for case leverage. Thoughts of putting the monkey on their backs run through your head, like why not add a penalty for putting me, the expert, into a position of having to now work 15 hours per day to perform at my best. Where do we as experts justify the pressure generated by firms in general, without any consideration of the hurdles we’ll have to run in order to offer professional expertise. Should we tack on additional billable hours as “Overtime” pay, or swallow the enchilada that this is just the way things are done in the expert witness arena, and reconcile that this is your job description, live with it?”

Some attorneys believe that hiring an Expert at the outset of a case may not be cost-effective.  However, in many cases, the opposite is true.  An article featured by the American Bar Association supports the view that the trend is toward retaining the Expert at the beginning of the case.  The authors, Lisa Pierce Reisz, Esq. and David V. Dilenschneider, Esq., in their article entitled, “Early Case Assessment:  Get Experts Involved From Day One” write that, “Many litigators and their in-house counsel clients recognize that this process facilitates better decision-making with respect to whether and how to proceed with a case-ultimately resulting in more certainty and a reduction of costs.” They go on to say that hiring the Expert well before the court-imposed deadline is just good strategy.

Is it possible to put an end to the love-hate relationship that exists between attorneys and experts?  Maybe this is a step in the right direction.

Expert WitnessInsurance

Expert Witness Insurance?

One question on the minds of Expert Witnesses more than ever is, “Do I need professional liability insurance?” That is not an easy question to answer.  Experts have always received  immunity from professional malpractice claims, however, there has been a trend toward allowing retaining parties to sue their Expert Witnesses for negligence.

In order to prevail, Plaintiff must prove that the testimony given is not on par with the Expert’s standard and that Plaintiff would have won the case “but for” the Expert’s negligence.  This standard is difficult to prove and requires a “trial of the Expert within the actual trial.” If found negligent, the Expert can only be held liable for the actual harm caused to Plaintiff. (Mattco Forge V. Arthur Young & Co.).

Avoiding Liability
According to the A-Z Guide to Expert Witnessing (Babitski, Mangraviti, and Babitski), the following tips will help Experts avoid professional liability.

  • Testify Truthfully
  • Be Well Prepared, Careful, Competent
  • Appear As Agreed
  • Maintain E&O Insurance
  • Understand the Daubert Test of Admissability of Testimony
  • Do Not Destroy, Misplace or Lose Evidence
  • Avoid Being “Agreed Upon” Expert To All Parties (Lose Adversarial Immunity)
  • Avoid Conflicts of Interest
  • Seek Legal Counsel In Drafting Contractual Language In Engagement Letter
  • Be Discerning As To Which Attorneys You Work For

With the absence of Expert Witness immunity, we would like to pose the following questions:

1. Should the party hiring the expert be entitled to sue the expert for malpractice?
2. Should the party that the expert testifies against be allowed to sue the expert?
3. Is professional liability insurance something that every Expert should consider?
4. What are the implications of Experts having to carry Professional Liability (E&O) insurance?

This post does not even break the surface of the case law or circumstances under which this topic could arise. It is simply intended to bring about discussion. Please leave a comment to answer the above questions, share any experiences you may have had, or opinions you hold on this subject.