How can expert witnesses please retaining counsel while still retaining their integrity, credibility, and viability as experts?
Attorney Barry Boise speaking at the SEAK National Expert Witness Conference addressed what attorneys are really looking for from experts:
I. Credentials
A. Qualifications/Professional Credentials
1. Active practice
2. Knowledge of current events and themes
3. Knowledge of events and themes at time period relevant to litigation
4. Peer recognition as expert in field or area
5. Accurate Curriculum Vitae – Don’t exaggerate or understate
a. Education
b. Professional Licenses and Certificates
c. Memberships in professional organizations and societies
d. Publications
e. Awards and Accomplishments
6. Experience as Expert Witness
a. Testify for both plaintiffs and defendants
b. Types of cases
c. Preparation for deposition
(1) Understand the importance of deposition
(2) Prepare as if preparing for trial: this is not a practice run
(3) Preparation sessions with counsel
(4) What to bring to deposition
d. Use of illustrative techniques, models and visual aids
(1) Be familiar with what is available
(2) Do what is necessary to communicate opinions to judge and jury
4. Be a Teacher
a. Be clear and concise at all times
b. Be a translator
c. Don’t assume that lawyer, judge or jury understands
d. Make recommendations about case strategy and theory
5. Administrative Communication
a. Arrangement of fee schedule
b. Formalization of attorney-expert relationship -Letter explaining scope and details of relationship
c. Be current with bills
d. Record keeping issues
e. Keep open line of communication so that administrative hang-ups
and concerns do not become a distraction
f. No surprises
II. Communication
A. Pre-Trial
1. Seek clarification of role at earliest point possible in litigation
a. Assistance in discovery
b. Technical advice
c. Examinations and experimentation
d. Trial witness
2. Be available
a. Activities directed by counsel/client
b. Return phone calls
c. Honor all commitments and deadlines
3. Preparation
a. Be meticulous – Request additional information; this is not “don’t ask, don’t tell”
(1) Cast of characters
(2) Look over every document
(3) Read every deposition transcript
(4) Ask questions and fill in gaps
b. Preparation of written report
(1) Base report on complete review of case facts, personal experience, knowledge, education and training
(2) Know your audience: balance desire to speak in complex terms with need to convey opinion clearly and concisely
III. Competence
A. Objectivity
1. Engage in independent investigation of facts of case
2. Reliance on attorney work product
3. Tackle case from all angles, good and bad
4. Carefully evaluate all new facts and evidence uncovered as case proceeds through discovery
a. Challenge previously held views when new facts arise
b. Communicate changes of opinion to attorney in timely manner
c. Be flexible and open to all new information
5. Avoid overzealousness: do not become attached, emotionally or otherwise,to a particular issue
B. Full disclosure at all times
1. Expose all derogatory material about background, communications, preparations, opinions, or interest in the case
2. Reveal areas of bias early on -Relationships with parties and/or judge
3. Disclose experiences or associations likely to be exposed on cross-examination
a. Have you ever been subject to a Daubert challenge?
b. Have you ever been disqualified from testifying as an expert?
4. Anticipate areas where opinions may be challenged
-Are opinions inconsistent with those of other authorities?
5. Are opinions inconsistent with any offered by you previously?
6. Communicate all conflicts of interest or potential conflicts as they arise
C. Style
1. Humility is paramount: Don’t patronize judge, jury or counsel
2. Confidence vs. Arrogance
3. Dress neatly, appropriately and in a manner which does not distract counsel, judge or jury
4. Credibility vs. Charisma
5. Keep emotions under control at all times
a. Control temper and temperament
b. Anger, exasperation, boredom, fatigue and surprise
c. Tone of voice
d. Manner of presentation – Respect and courtesy
IV. Completeness
A. What have you done?
1. Document each step of your analysis and how long it took
2. Record each authority, written or otherwise, upon which you have relied in forming opinion
3. Keep records of publications within the past ten years and deposition and trial testimony for the past four years
B. What haven’t you done?
1. If you failed to perform any tests or analyses that may or should have been done, be prepared to explain why
2. Express honest disagreement with authorities and ask to examine any source offered to you as authoritative
3. Be comfortable with hypothetical facts as well as the real ones
C. Fees/Billing
Attorney David Tirella will be speaking on How to Excel During Your Initial Interview with Counsel at the SEAK National Expert Witness Conference May 3-4, 2014 in Orlando, FL.
How to Excel During Your Initial Interview with Counsel: Getting Hired
David Tirella, Esq.
Attorney Tirella will describe the process that attorneys go through when interviewing an expert witness for a potential assignment. He will explain what experts say and do during the interview that turns off counsel. Attorney Tirella will offer practical tips and suggestions for experts to excel at their interviews and get hired.
David Tirella, Esq. is a partner of Eaton & Tirella. He has focused his career on high profile complex cases. With 24 years of experience handling a wide variety of civil and criminal matters, including more than 200 bench and jury trials, David has personally interviewed and/or hired hundreds of expert witnesses for criminal, civil, and medical malpractice cases. David frequently speaks and teaches on a wide variety of legal issues ranging from personal injury, legal education, and expert witnessing. His cases or legal opinions have also appeared on “CNN/Headline News”, ABC’s “20/20”, Associated Press, Tru TV’s (formerly Court TV) “In Session”, Tru TV’s “Open Court with Lisa Bloom”, ABC News, and MSNBC. He is a board certified civil trial lawyer by the National Board of Trial Advocacy. He is an Adjunct Professor of Law at Stetson University College of law and teaches expert witnessing, and is AV rated and selected into the Bar Register of Preeminent Lawyers.
The SEAK 2014 National Expert Witness Conference will be held May 3-4, 2014 in Orlando, FL. For further information, visit www.seak.com.