We want to make sure you have a strong working relationship with your attorney client. The single most important thing you can do to is to communicate clearly and frequently.  Below is our suggested checklist to help our experts and attorneys have a strong, productive working relationship.

1: Have a phone conversation with the client about the attorney-client privilege and discovery.  Make sure you understand how the client wants you to send communications that could be included in a discovery request from the opposing side.  Some attorneys do not want sensitive information to be emailed.


2: Check in with the client at your earliest convenience before starting work so that you understand the client's expectations regarding timelines, deadlines and workload.  Clarify the scope of work if you have any questions.  Spending your time performing work that the client does not need may end up as an invoice dispute later on.


3: Routinely follow up with client as the work progresses and let them know before beginning any large blocks of hourly billing and be willing to provide hourly estimates to the extent possible.  Thomson Reuters Expert Witness Services has dedicated professionals to assist you with budget management if your engagement is through one of our referral services.


4: Notify the client ahead of time about any large out-of-pocket expenses you expect to incur (travel, testing costs, etc.) and consider asking the client to pay these expenses directly during the contract negotiation period.  Remember that most clients will not pay for your time spent "getting up to speed" on a subject or for items considered overhead (e.g., secretary services).


5: Update clients as often as necessary about the conclusions you reach.  Remember that the client may not want you to email this information.


6: Let clients know of any expected or unexpected unavailability as soon as possible and coordinate your schedules.


7: If your referral is through Thomson Reuters Expert Witness Services, please contact your Case Coordinator with any questions about invoices.  

One of the most challenging things for an expert witness to do is explaining highly complicated ideas to layman on the jury. For example, most jurors are not scientific experts in pharmaceutical design, or corrosion rates of pressurized metal pipelines. So how can an expert witness effectively communicate to a jury a complicated idea that borders on esoteric for most of the population? Ken Lopez, founder of A2L Consulting, wrote a terrific article offering some solid methodologies for expert witnesses facing this challenge, much of which is posted below.

Very often, trial attorneys in complex cases need to explain extremely difficult and elusive scientific concepts to jurors who are not well versed in science. The lawyer's job is to convey the science correctly to the jury so that they can make a rational decision - yet not to bury the jury under a blizzard of scientific terms and concepts that they will never understand.

The answer is to use visuals in the form of photographs, schematic diagrams, animation, timelines, demonstrative evidence, document call outs or whatever is suited to the situation, and to explain them in terms that jurors who are not specialists in the scientific subject can understand.

Analogies (in other words, what is something like?), contrasts (how is something different from something else?), and simple definitions (what are the components of an object? how is it used?) are very useful tools for the trial lawyer.

As Jan D'Arcy wrote in 1998 in Technically Speaking, "Many scientific subjects are hard to describe; they can be difficult to see, touch, measure or imagine. A presenter should find ways to illuminate a concept in known terms with the least amount of distortion. . . . Comparisons and contrasts are two of the best ways to translate your information clearly to your audience. Similes, metaphors, and analogies are comparisons that can often lead to amazing insights."

As Matthew Weinberg, CEO of the scientific consulting firm The Weinberg Group notes, "Successful litigation relies upon a strong science story.  An expert who can explain the science easily and clearly makes a difference.  Juries want to understand the science and can be helped by an expert who makes it interesting and believable."

The entire article can be found here.

No expert, especially those new to being a legal expert witness, should go into a court room without preparation. Indeed, that preparation could include training on how to write and explain a report, present a diagram or other visual evidence, even ones stature and how to dress for a jury. Another area that is clearly critical is how to handle cross examinations. Every client, and experienced expert, has an anecdotal story to tell about a cross examination that ripped apart the opposing expert, with serious consequences to the case at hand.

Kathy Kellerman (of ComCon) posted about a recent article published in Criminal Law Review, in which the authors Ellison and Wheatcroft present formal evidence on the usefulness of training expert witnesses on how to handle cross examination, and the perils of not doing so.

Ellison and colleagues (2010) investigated whether instructing witnesses about attorneys' cross-examination questioning techniques could improve the accuracy of answers witnesses provide.

They noted that witnesses are confronted frequently in cross-examination with complex and leading questions that contain multiple parts, negatives, double-negatives, advanced vocabulary and legal terminology. Witnesses have difficulty deciphering and answering such questions accurately.

Numerous adult witnesses watched a videotaped crime and then were cross-examined about the crime in a mock courtroom environment by an attorney. Before undergoing cross-examination, half of the witnesses received instruction in the form of a leaflet that:

    * described the purpose of cross examination (e.g., to test evidence and elicit information favorable to the cross-examiner's case)
    * offered practical guidance for answering questions (e.g., listen carefully, ask for clarification if a question is not fully understood, answer all questions truthfully)
    * offered examples of questions (e.g., leading, multipart, used double negatives) accompanied by advice that witnesses should not agree with a suggestion ventured by the cross-examiner unless it was accurate

Some witnesses underwent cross-examination that used complexly phrased questions, while others were asked simplified questions. Complexly phrased questions were leading, multipart, contained advanced vocabulary, and used double negatives. Simplified questions were still leading and multipart, though used less complex vocabulary and were devoid of double negatives. Other than these phrasing differences, the set of questions was the same for all witnesses.

Witnesses instructed in attorneys' cross-examination questioning techniques offered incorrect responses, on average, to 12% of the questions they were asked; uninstructed witnesses had an error rate 52% higher. Instruction in attorneys' cross-examination questioning techniques was particularly helpful to witnesses confronted with complexly phrased questions: witnesses not receiving this instruction made 66% more errors than witnesses receiving instruction.

For leading questions, witnesses instructed in attorneys' cross-examination questioning techniques made significantly fewer single responses to multipart questions, and recognized inaccurate premises embedded within questions significantly more often as compared to uninstructed witnesses.

Without instruction, witnesses often were confused by attorneys' questions in cross-examination and feel inhibited from asking for clarification due to intimidation and/or the pace of questioning. Witnesses receiving instruction in attorneys' cross-examination questioning techniques asked for clarification nine times more often than those not so instructed.

Witnesses reported that the instructional leaflet had usefully told them what to expect during cross-examination, explained how the questions could or would be asked, made it easier to answer the questions, and provided them the self-assurance to speak up and ask for help when they needed it.

In sum, instructing witnesses about attorneys' cross examination questioning techniques significantly improves answer accuracy. Witnesses who receive such instruction make fewer errors when testifying, and more often seek clarification when they are confused

What makes an expert credible to a jury? Clearly this is a critical question for both lawyers, and the expert witnesses they retain. The most knowledgeable expert in the world is functionally useless unless they can effectively communicate their expertise to a jury, something every lawyer knows well.

Kathy Kellerman, of ComCom, cites extensive jury research in her argument that good experts are "good teachers with sound credentials and acceptable motives for offering their testimony".

This revealing article, based on post-case jury interviews, can be read in whole below.

"Experts are important witnesses in a high percentage of civil and criminal trials. Jurors use multiple criteria to judge the credibility of expert testimony.

Schuman and colleagues (1994) interviewed jurors from many different trials in a number of cities about how they responded to expert testimony. Jurors considered an expert's (a) tendency to draw firm conclusions, (b) qualifications and reputation, (c) reasoning, (d) familiarity with the facts of the case, and (e) impartiality. Jurors did not rely on superficial characteristics such as appearance or personality, nor defer automatically to an expert's conclusions.

Ivkovich and Hans (2003) interviewed 55 jurors who served in 7 different civil trials involving medical malpractice, workplace injury, product liability, asbestos, and a motor vehicle accident. The criteria jurors used to evaluate the expert testimony involved both the message and the messenger:

• Jurors evaluated the content of expert testimony by looking at its (a) completeness, (b) consistency with other evidence, and (c) complexity.
• Jurors evaluated the experts on the basis of (a) their credentials, (b) motives for their testimony, (c) general impressions, and (d) the content and presentation of their testimony. The importance of these factors varied from juror to juror, expert to expert, and case to case. Good witnesses were described as good teachers with sound credentials and acceptable motives for offering their testimony. Jurors agreed less about what made a bad witness.

In sum, jurors evaluate experts and their testimony on their merits"

We recently surveyed our electrical engineering experts, asking them a dozen or so questions about their field. The last question we asked was: "What questions should we be asking that we are not?". The response was huge! Here are some of them. if you have others to add, please feel free to post!

Q: Have you served as an arbitrator in your field?
Q: How are you preparing your employees for the emerging smart grid electric power industry?
Q: What certification do you hold and how long have you been doing energy audits?
Q: How can carbon dioxide emissions be curtailed dramatically in the future?
Q: What percentage of wind power can be generated in an electrical grid system before it becomes unstable due to erratic generation and how can power demand be met when wind is not available?
Q: If there is a sensitive electronic circuit that is in close proximity to conductors carrying heavy currents, and terminals operating at high voltage, what design steps should be taken to mitigate the effects of these?
Q: Have you designed any novel display device and if so what is the novelty?
Q: How recently have you been involved in designing or commercializing products?
Q: What do your peers consider you in your field?
Q: Have you ever worked in finding the cause of failure of optical communications network? If so, how would you distinguish between human-caused failure from pure technical failure?
Q: What do you think is the Next Big Thing?
Q: What kind hardware and software design languages you are familiar with?
Q: Have you reviewed and mapped patents to existing international standards?
Q: Have you been awarded any US patents in EE related fields?
Q: Regardless of degrees, licensing, or certifications, how many systems have you personally connected up, tested, commissioned, and brought on line?
Q: Besides patent infringement cases, to what other types of case do you contribute?
Q: What is the number of product for which was lead designer on products being manufactured and in use?
Q: What personal resources do you have for measuring, testing and evaluating designs?
Q: What courses have you taught at the University level?
Q: Describe an instance where you were able to explain complex concepts to a jury.

Depends who you ask. But 71% of corporate counsels, and 61% of private practice lawyers agree that pricing and fees is the #1 issue facing the legal industry, according to the recent Lex/Nex survey. Undoubtedly fodder for a blogosphere feeding frenzy, this commissioned survey also shows that most (77%) private practice lawyers believe their clients are too focused on cost.

The impact of these, and other noted trends, has a serious impact on the expert witness industry.

Many of our experts we place with clients are new to the experience, and have never testified or given a deposition before. Given that many a deposition will be in a hostile, or at least oppositional manner, preparation is critical.

One of the most common questions I get is: "What should I expect?"

Well, every deposition will be different, but as a starting place to prepare, here are five good questions you ought to be able to answer, as posted in the Trial Lawyers Resource Center web page.

Who engaged you on this case?
What did the ask you to do?
What did you actually do?
What conclusion and opinions did you reach, and what do you intend to testify to at trial?
Were there any other test - analysis or things you could have done that you would have liked to? What were they?

Clearly, there will be case-specific issues as well, but these are a good indication of what an opposing attorney might ask you.  

Another good suggestion they have is to draft the 10 most critical questions that the opposition may ask.  Ask yourself how to answer these questions, or better yet, have your client or a colleague ask them, perhaps even in a confrontational way.

"What litigation trends should I expect from 2010?" one of my favorite-to-work-with experts asked me a couple of week back. Its was a question I had been hearing a lot lately, and I had been asking it almost as often. Here is what I see as some of the trends in the expert witness industry.

For 2010, I see three major trends in the expert witness industry: Earlier identification and retaining of experts,  increased sensitivity to cost by clients, and an increased amount of litigation in environmental damages, financial misconduct, and in the area of labor and employment. What does this mean for expert witnesses?

First, there will be a greater amount of time between the search/identification/interviewing/retaining of experts by clients on the one hand, and the actual start date of experts, on the other. Experts will need to be able to work within a longer time frame, requiring careful expert-client coordination on invoicing.

Second, and we saw this more and more last year, Clients will be much more cost-sensitive, requesting budgets from experts, relying more on video conferencing and other cost saving measures, and taking a harder line on negotiating rates. Experts who include this cost sensitivity in to their marketing and presentations will have an advantage over their competitors.

Finally, based on industry reports and expert observations, we expect to see an increased demand for expert witnesses in many areas of litigation, perhaps particularly in environmental damages matters, in employment and labor disputes, as well as in continued (and increasingly broad) litigation from the fall-out of the financial collapse of 2008-09.

Table Group Group membership can help you take full advantage of the latest industry trends, with profile reviews, links to conferences, and marketing ideas. Just reach out to our skilled expert services coordinators, who are standing by to assist. 


  

Expert Witnesses usually have good advice. And any expert witness who has ever worked with a law firm client, always has some advice on how the working relationship could have been better, or so I have observed over years of conversations with expert witnesses.

Recently, while reading about an ABA seminar called "10 Ways that Attorneys Kill Their Own Experts" it occurred to me that it might be great for experts if we, as an industry, could share the wisdom of the industry with each other.

Ever suddenly have a deadline moved up? Or maybe your client didn't get you all the evidence in a timely matter? Or had your report ignored? Or stiffed you on an invoice? How did you deal with it, and more importantly, how have you learned to avoid these pitfalls?

Maybe you have a list of the 'Three most important things to tell a new lawyer" before they start working with an expert witness?

Lets hear your advice on the best practices for successfully working with lawyers. We will post the replies here, where expert witnesses new to the field, and seasoned veterans alike, can benefit from them.

I look forward to your input, and sharing that wisdom widely.

 

At Round Table Group we believe there is more to getting retained as an expert witness than competitive expert witness billing rates, discipline expertise, stunning resumes, and sterling references. There is also the critically important expert-client agreement (or retention letter) that defines the scope and expectations of the expert-client relationship. This document describes issues such as deadlines, communication preferences, invoicing processes, and the very important topic of confidentiality.

Experts are a critical asset in winning cases, we know that. But as Gregory P. Joseph points out, the issues of confidentiality and discovery pose a challenging hazard to experts that they must be aware of. However, with just a little foresight and preemptive precautions both experts and clients can avoid this potential pitfall.

Joseph's article,  titled "Engaging Experts" nicely explores the issue of protecting confidential information. And while he is writing for an audience of lawyers, his point on confidentiality and protecting the case, and the parties involved with the case (including experts), is very well taken, and could be adopted by experts as well.

I have suggested in CLE presentations that "thorough and clear pre-retention communication, leading to carefully defined and agreed on terms of cooperation and expected outcomes" are critical to a healthy and successful expert-client relationship. Mr. Joseph's article parallels that idea.

With his permission, I have included two paragraphs he suggests as a model for client-expert retention agreements.

The heart of the form retainer letter consists of the following two paragraphs, which are analyzed in depth below:

    [1] It is understood that (i) you will make a reasonable effort to be available upon reasonable advance notice; (ii) you will keep confidential all information obtained, or analysis developed, in connection with this litigation or any related litigation with respect to which we may seek your advice and counsel; (iii) you will use such confidential information solely in connection with your engagement by us on our client's behalf; (iv) you will preserve any written materials, including e-mails, generated or received by you in connection with this engagement, as such materials are potentially discoverable in litigation; (v) you will not in the future consult for, or otherwise represent, any other person or entity with an interest adverse to our client's interests in or concerning the pending litigation, or the events or occurrences out of which the pending litigation arises; and (vi) you will keep confidential your retention by this firm on behalf of our client, unless and until you are identified in court papers as a testifying expert or we otherwise authorize you to breach this confidentiality.

    [2] It is specifically understood that, if you are later designated a testifying expert, all documents that you create may become discoverable, including drafts and notes prepared prior to the time that your opinion or report is finalized. In our experience, opposing counsel who obtain such documents in discovery often seek to use them in an unfair and misleading way -- for example, to suggest that a change from an earlier draft to a later version has some sinister explanation. This is particularly unfair because you will be learning the case over time, and you may not know all relevant information prior to the time that you finalize your opinion and report. In addition, the preparation of draft opinions and reports is expensive and should not be undertaken prematurely. Therefore, you agree that: (i) you will not prepare any draft opinion or report without our consent (regardless of whether the draft is for internal purposes or to share with others); (ii) you will not share any draft opinion or report, or any notes, with any other person without our consent; (iii) every draft opinion or report will bear the following legend: ‛THIS IS A PRELIMINARY DRAFT. IT HAS BEEN PREPARED BASED ON PRELIMINARY INFORMATION AND ON ASSUMPTIONS. NO ONE MAY RELY ON THIS DRAFT. IT IS SUBJECT TO CHANGE AS ADDITIONAL INFORMATION BECOMES AVAILABLE OR IS CLARIFIED"; and (iv) all notebooks or individual pages of notes will bear the following legend: ‛THESE NOTES ARE INCOMPLETE AND HAVE BEEN PREPARED FOR PERSONAL USE ONLY. NO ONE MAY RELY ON THEM FOR ANY PURPOSE. ALL VIEWS ARE SUBJECT TO CHANGE AS ADDITIONAL INFORMATION BECOMES AVAILABLE OR IS CLARIFIED"

At Round Table Group, we work hard to assist our experts in every phase of getting retained, and ensuring a smooth, positive, and profitable experience.

If you have any questions about retention agreements, or any matter, please contact one of our expert services coordinators.