Wednesday, February 11, 2015

Ten Mistakes Experts Make and How to Avoid Them

We all know that making mistakes when trying something new is part of the experience. And, we've all heard the old adage – ‘learn from your mistakes’. For the most part, this is true. But, when it comes to expert witnessing, making mistakes can have an impact on both the case and your credibility. Here we present ten mistakes that experts have made and how you can avoid them.

  • Taking the attorney at his/her word as to what the main technical issues are in the case. 

Attorneys, though adept at quickly learning new information, are not experts in your specialization. After being retained, you may find significant issues that alter or adversely impact your tentative opinions and the case.  Objectively discuss your preliminary findings early on with your client so he/she can strategize on how to proceed with the lawsuit.

  • Accepting retention on a case that is beyond your area of expertise.

If you offer opinions that are outside your education, training or experience, the opposing side will expose your weaknesses and lack of experience in those areas during your deposition. You risk being excluded as expert, which could jeopardize both your reputation and the case. Stay within your discipline even if it means turning down an opportunity.

  • Letting the attorney push you into stretching your opinions beyond your expertise.

You risk having your testimony limited, which could compromise both your reputation and the case. The attorney may want to minimize the number of experts retained on a complex case in order to save costs. Don’t try to be the hero and offer to give opinions on topics beyond your qualifications.

  • Not knowing the rules regarding expert witness discovery.

Any written communications you have with the attorney, your colleagues and other experts, as well as any notes and draft reports retained in your file may be discoverable in most state courts, though not in Federal Court. Depending on what you have written down in your file, the opposing side can question you about it, which can result in a very tough deposition. Also, the information may be damaging to your opinions and the case. Ask the attorney what the discovery rules are and be mindful of them throughout your retention on the case.

  • Writing an expert report that omits certain facts from discovery that may not support your opinions.

Excluding this information can indicate to the opposing side that you have a biased view of the evidence. Your expert report should include potentially adverse facts and issues and explanations for why that information was considered and discounted in the context of your opinions.

  • Neglecting to thoroughly review the documents on which you relied when forming your opinions.

Prior to your deposition, the opposing side will carefully examine each document to see if you cherry-picked information and ignored material contrary to your opinions.  Opposing counsel will try to surprise you with questions about information that may be viewed as favorable to their argument. You should be very familiar with all the pages in those documents to the extent that when shown a document you relied upon, you have a response ready for any question.

  • Failing to control your emotions in your deposition.

When the opposing side’s attorney asks questions about your background and personal life that appear to belittle you and your expertise, you must control your emotional response. Opposing counsel is observing how you respond to adversarial questions. Losing your cool during this type of questioning shows the other side how you react when the heat is on and he/she will exploit this during your cross examination at trial.  Maintain an even keel even if the attorney is being antagonistic and demeaning.

  • Discussing with your side’s attorney, while on a break in your deposition, answers you just gave to important or difficult questions asked by the other side.

When the break is over and you are back on the record, the opposing attorney may start by questioning you on what you discussed.  You must disclose the conversation, which could be embarrassing or weaken your testimony.  Refrain from discussing your testimony unless you identify something you said that needs to be clarified or corrected when back on the record.

  • Being unprofessionally dressed for a videotaped deposition.

The subpoena that notices your deposition will state whether your deposition will be videotaped. If, for some unforeseen reason you cannot testify at trial, the opposing side can show excerpts of your deposition testimony.  The jury will perceive your unkempt appearance as a sign of inexperience or lack of professionalism. Therefore, your appearance at deposition should mirror your professional appearance at trial.

  • Demonstrating to the jury both how smart and experienced you are by using scientific jargon, complex phrases, and fast-paced speech.

When you are testifying at trial, the jurors must like you and understand what you are saying if they are going to rely on your testimony during their deliberations. Outsmarting the jury will ruin your likeability, the jurors will lose interest, and your testimony won’t be memorable. When testifying, be sure to speak slowly and explain technical concepts with simple language so the jury has the time and ability to understand your testimony.

  • BONUS: Allowing the attorney that retained you to ghostwrite parts or even all of your expert report.

Attorneys are advocates for their clients – meaning they may not view facts the way you do because they want their side to win. You must be an advocate only for your opinions. Even if you form your own objective opinions and present them to the attorney, if you let him/her write your report, those opinions and the basis for them may be perceived as biased by the court. If opposing counsel finds out they will likely attempt to have you excluded, and if successful, the case and your reputation will be damaged.


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