By Steven Babitsky, Esq.
Expert witnesses play an integral part in most litigated cases. Even experienced trial attorneys make common mistakes in their dealings with their retained expert witnesses. The most common mistakes lawyers make may include:
1. Not Retaining the Experts Early On in the Case
Counsel who retain their experts after deciding on their cause of action, litigation strategy, selection of defendants, and trial strategy are missing an opportunity. Early selection and retention of experts permits counsel to tap into the nuanced knowledge and experience of their experts. Experts may have substantial experience in the area in question and can help counsel avoid costly mistakes in their theories of the case, selection of defendants, etc.
2. Using Their Experts as a Valuable Source of Information
Counsel who look at expert witnesses solely as a way of getting their necessary opinions into evidence are missing a golden opportunity. The experienced and knowledgeable expert can be a valuable resource to help educate counsel as to the science, research, unwritten nuances, strategy, opposing expert, and past experience in being involved in prior litigation on similar issues and fact patterns.
3. Providing the Expert with Adequate Time to Do a High Quality Job
Counsel should give their expert witnesses adequate time to conduct their investigation and research, write their reports, and prepare for their depositions and trial. Last minute assignments and deadlines often result in mistakes, errors, and omissions which could have been avoided had adequate time been provided to the expert.
4. Providing the Records in a Timely Fashion Necessary for the Expert to Do an Excellent Job
Counsel who selectively provide records, portions of records, or deposition transcripts, etc. make it difficult for the expert to follow their protocol and reach solid defensible opinions. Last minute “data dumps” can and often do result in missed opportunities for completeness and high quality reports and testimony.
5. Micromanaging the Expert Witness
Counsel who unduly restricts their expert from conducting thorough investigations, inspections, testing, research, reviewing documents, etc. may harm their cases. These experts may later be hard pressed to explain/defend these omissions/inactions. It will never be sufficient or helpful when the expert has to testify there was an insufficient budget to do what should have been done.
6. Fighting About Fees
One of the more common areas of friction between counsel and their experts is the amount and timely payment of the expert’s fees. This can result in bad blood, unhappy experts and lawyers, stoppage of work, and unnecessary distractions. In some cases communication between counsel and the expert completely breaks down. The fee problem can and should be avoided with a written fee agreement, timely bills and payment, and discussion and resolutions of any fee and payment misunderstandings.
One of the biggest complaints we hear from expert witnesses is that counsel is not sufficiently concerned and thoughtful about the scheduling of the expert’s deposition and trial testimony. Generally, counsel will want to work with the expert and his/her schedule to work out a convenient place and time for their depositions. Trial testimony is obviously more challenging depending on the judge, trial schedule, and case. When counsel tells the experts something like she needs to “block out the week of November 7-14th” this can create havoc for the expert and their clinical practice. Is counsel intending to pay the expert her daily rate for 7 days? A more surgical approach to scheduling trial testimony avoids this mistake and will make for a better relationship with your expert witness and better results.
8. Preparation for Deposition and Trial Testimony
Counsel, due to the press of time or budgetary constraints, are not adequately preparing their expert witnesses for depositions or trials. We at SEAK are often called upon by experts to help them prepare after counsel has either refused to work with them or has allotted only an hour immediately prior to a challenging depositions or trial for preparation. This lack of adequate preparation raises the level of anxiety of the expert and results in subpar testimony at deposition and trial. There is no good reason for inadequately preparing an expert witness for his deposition or trial testimony.
9. Asking the Expert to Stretch Their Opinions
Counsel who asks/convinces an expert to leave their true area of expertise and opine on other areas opens the expert to unnecessary cross-examination and a possible Daubert disqualification. In addition to harming the expert, counsel’s case can be lost by the failure to obtain the necessary experts to cover these additional issues.
10. Failure to Assist the Expert Witness
While counsel is not the expert witness’s lawyer, it still is essential that counsel assist and protect the expert from over-burdensome subpoenas, Daubert motions, and other actions taken by opposing counsel in the course of the litigation. Failure to do so will harm the relationship with the expert, damage the expert’s reputation and viability, and potentially undermine counsel’s case. This responsibility should not be passed off to an inexperienced lawyer with little or no knowledge of the case.
Counsel, by dealing with the issues raised above in a direct fashion with ongoing communication with their experts, can achieve higher quality expert reports, testimony, and more favorable outcomes.
About the Author
Steven Babitsky, Esq. is the President and founder of SEAK, Inc., the Expert Witness Training Company. He was a personal injury trial attorney for twenty years and is the former managing partner of the firm Kistin, Babitsky, Latimer & Beitman. Steve has helped expert witnesses and their attorneys prepare for deposition in a broad range of cases, including antitrust, patent, medical malpractice, wrongful death, computer forensics, and many others. He has trained the Federal Bureau of Investigation and the Federal Aviation Administration, and he has worked with numerous forensic and financial companies including Fortune 500 companies.