THE EXPERT WITNESS SELECTION PROCESS
1. Always Ask Where They Found Your Name
This is important for determining advertising dollars spent wisely. More importantly it is critical to know how they found you because the provenance of their search adds to your immediate understanding of their future expectations. If they say Charlie Jones referred me and you have had a good working relationship with Charlie, you can then continue to reference the way you two interacted and suggest that he call Charlie to find out how he was able to use you best. This also gives the opportunity when you are calling later to thank Charlie for the kind referral to ask a few discrete questions about this attorney. I have on more than one occasion been warned off from working with an attorney after I spoke to the referring source. You will also find out by asking what Charlie told them about you whether the referring attorney should be used for a resource or not.
BRIEF OVERVIEW OF THE CASE
I ALWAYS ASK UP FRONT FOR A BRIEF OVERVIEW OF WHAT THE CASE COVERS AND WHICH AREAS OF MY EXPERTISE THEY FEEL WOULD BEST ASSIST THEM.
a. Allows me to screen for conflict of interest
b. Provides me the opportunity to hear what they are really looking for. “I am looking for an expert witness who will say”, is the first level of screening. The only response to that is turn down their case. Beware of any attorney who starts out that way. That means that they really don’t respect the independence and the professionalism of the expert. They won’t be happy with the outcome unless it fits their agenda and they will not back up the expert and pay for your services if you don’t give them the answer they think their retainer check bought.
c. Make sure that the case falls within your true area of expertise. Never take a case in which you are not an expert by virtue of education, experience and knowledge of the field and changes in the science.
DETERMINE WHETHER I CAN SUPPORT A BELIEF IN THE CASE
Remember, an attorney has to provide a defense, you don’t. After listening to the elements of a case, you decide that you can’t in good conscience support that case, don’t take it. You aren’t an advocate, you are an expert and you must protect your integrity at all costs.
Integrity, consistency of philosophy and knowledge of the field are all you have to sell. The first time you sell out is the last time you are worth a dime.
Why is this important? A good opposing attorney will research your opinions in like cases. If they detect conflicting opinions in cases with similar elements, the implication that you work for the dollar cannot be avoided. It also forces you to go the level of the absurd in defending the indefensible. You will look like a fool and a sell out. Again, a sell out quickly negates their integrity and opinions now and in the future.
THE DEAL WITH THE ATTORNEY
After determining the you are the best qualified expert by virtue of your training, experience and knowledge and are able to function in the role that the attorney needs, spell out the parameters very clearly to the attorney
a. My professional organization does not allow me to testify as an expert if I treat or have any investment in the outcome of the case. The outcomes are different and I would be violating my professional creed and licensure if I operated any other way. My duty is to my license not the attorney.
b. Do not take any case where the outcome is predicated in any way on whether or how you get paid at the conclusion. No contracts of deferred pay at the time of case settlement. They are illegal.
c. Ask a lot of questions with the promise of complete confidentiality about any elements of the case that puzzle you. If you can not get a hundred percent behind the client, refuse the case and offer to refer to a colleague. If you are not the expert in the field, refer to a colleague who is.
If an attorney lies to you or distorts the facts, immediately withdraw.
Return the retainer in any case where you discover that the facts have been distorted or edited and now you can not assist in the case after this revelation. Bill only for time expended in the review process.
Have a frank conversation with the attorney about the Daubert. Demand that as soon as a Daubert challenge is filed or a summary judgment that mentions you, you must be notified and all documents must be sent to you! This element must be in the contract and I suggest that you attach a statement of financial penalty to be paid to you if that is not followed. This is critical!!
Spell out clearly what your relationship is going to be with the attorney in the contract. If you are expected to testify or if you are a consulting expert. What is to be paid immediately and the terms of any large payment. If not paid, stop work!!!
Ascertain how many cases an attorney has litigated. Be very careful if the attorney is inexperienced as a litigator. Why? Because they will make mistakes that can profoundly affect your career.
Never be afraid when your gut says something could go south, to write a letter of withdrawal or intent to withdraw if the relationship can not be cured. This is of course predicated on you having clearly spelled out how you have to be worked with. Set the terms for working together, do not let the attorney set them or you may find your reputation compromised. ALL YOU HAVE TO SELL IS YOUR REPUTATION, YOU MUST PROTECT IT AT ALL COSTS.
Write a specific contract for the retainer amount and how you bill your services.
I always insist that the attorney pay upfront for my car, hotel and travel with their credit card. Make this clear up front and ask if the attorney has the resources. Expenses you front are often not paid.
Agree that when the amount left in the retainer gets to a certain level that you will stop work until you receive another check.
Keep the attorney informed of the money so that you don’t hear later that they didn’t know. Do it in writing.
Ask the attorney which of your colleagues they have used in the past. I call colleagues and ask them how the attorney was to work for. This will tease out serial hirers. Attorneys who don’t pay or are so difficult to work with that they have to keep looking for a new expert witness each time because they have burned their bridges. A bad report from a colleague I know and trust will usually result in y deciding to not take a case.
A MEETING OF THE MINDS
Put in writing how you work and what you require from the attorney:
a. Notice of deadlines, depositions and your requirements for pre-trial or pre-deposition preparation. Be sure that you send this list to their paralegal also.
b. Inform the attorney that you need a way to reach them if something comes up on their case and that you can understand being put off for a day or so, but repeated ignoring of you or non return of your phone calls will probably mean a less than excellent job on your part which will not be acceptable to you.
c. Inform them that as soon as documents are available, you need to see them. This is to avoid a huge crate of materials arriving four days before the report is due. The pre meetings before trial or the deposition means that you are both on the same page and that the attorney makes clear what points are to be emphasized and in general what he is going to ask you. Also, you need to know what is included in the pre-trails exclusions and motions so that you can tailor your answers to the parameters of the testimony.
d. Ask the attorney how comfortable they are in working in a collegial team with an expert. This is a critical point. I have had some attorneys decide on their own on some fabulous Perry Mason move that is ill advised and affects the integrity of my opinion. I once actually quit mid-trial because the move was so egregious.
Make sure that the attorney understands how you are accredited and what you do exactly and the parameters of your licensing title.
THE TYRANNY OF THE DAUBERT
The Daubert is the number 1 trap for expert witnesses. Expect to be challenged under the Daubert. So be prepared!!!
Daubert requires numbers. Unfortunately unscrupulous colleagues will bring anything with a number- head bumps, shoe size, any test that they can construe to meet the need of the court for numbers to crunch under the Daubert. Some things can not be judged by Daubert standards. Be prepared to show why it can not with literature to back up that opinion and make sure that your attorney understands your position.
Always bring a hand truck of materials to a deposition and insist that they be entered by title and author and relevant page.
When requested to list for a Rule 26 everything you relied on for an opinion, do not be afraid to say that if you could list it all, you clearly would not be an expert.
THE TYRANNY OF THE DAUBERT,
Edit your vita to reflect only the relevant materials for the case. The fact that I speak Swahili does not aid me in a PTSD case. It does however, give the other side fodder for questions extraneous to the case and possibly create an unnecessary problem. I have seen experts ridiculed for listing speeches to the garden club.
Recognize that in some states such as Texas, an expert’s medical and mental history can be used to indicate bias or state of mind. If there could be an awkward questioning issue, consider the advisability of taking the case. Always ask an out of your state attorney how things proceed in their state.
Remember that the purpose of the Daubert is to inform in some way that common sense can’t and the judge is the gate keeper for deciding if he needs your expertise. Always spend some time discussing why this is a complex issue that needs an expert’s interpretation. Keep in mind that though he will never admit it, the judge probably has little knowledge of your field but thinks he is an expert on it.
Failing a Daubert can spell the end to an expert’s career so any challenge to your expertise must be anticipated and taken seriously. This is why I insist on a written understanding between my attorney and I that I will be notified and I will participate in the drafting of any objections to my input.
THE TYRANNY OF THE DAUBERT
E. Never write a report for a Daubert challenge as a shill for a lawyer who needs someone to shoot down the expertise and technique of a colleague’s report. First you will make an enemy with a long memory and secondly, it is extremely unprofessional to criticize something for which you have no direct knowledge and in many states can cause you problems with your license. A real trap for your career.
F. If ever challenged on the basis of a report written by a colleague to trash your report, make sure first that the have the same training and credentials and licenses that you have. It is a violation of most states’ licensing code to evaluate a colleague with a different license and training.
Don’t allow editorializing about you in a Daubert challenge and make sure your attorney understands up front that you expect them to take up the cudgel for you. When there is a report sarcastically saying, Dr. Jones unprofessionally determined some matter or another. Insist that the term unprofessionally be clarified by what standard. These terms often sway the judge and again can result in a negative and unfair determination about your skills and expertise.
TAKE CHARGE OF YOUR OWN CAREER
ONLY YOU ARE CAPABLE OF PROTECTING YOUR OWN INTERESTS AND THE INTEGRITY OF YOUR CAREER.
Turning down difficult or sloppy attorneys or cases that really aren’t your field, only increase the respect of attorneys, the value of your reputation, and the chances that you will not be successfully challenged by Daubert.
You are not a slave, you are an authority and a professional in your own right, therefore you have to set the standards for your participation. They have only paid for your time, not your opinion.
Shari Julian PhD, MS, M.ED, LPC, LMFT, PHR