Before the Agreement: How Experts and Attorneys Assess Fit
By Noah Bolmer
Expert witness engagements begin with a mutual evaluation—both the attorney and the expert are assessing fit, scope, and potential risks. Before any formal agreement is signed, most experts offer a free initial phone call to clarify the case context, identify possible conflicts, and gauge whether their expertise aligns with the attorney’s needs. This early exchange helps both parties avoid missteps and ensures that the engagement proceeds on solid ground.
Attorney Perspective
Prior to engaging an expert witness, attorneys will often review publicly available materials to verify credentials, check history, and to reveal whether an expert’s views align with the theory of the case. Trial and appellate attorney Kevin Hensley notes:
I will generally do a search through prior testimony—and [there are] a lot of databases online where expert testimony is available. That’s the most important thing. It can be tough, to be honest, at times, when an expert has three hundred published journal articles to go through all those. If the case was important enough, I’d probably get some assistance to do that. In an ordinary case that can sometimes be hard to do. Searching prior testimony though, is critical, and anything that’s available to the other side on the Internet is something I want to look at. That’s typically my focus when I’m vetting an expert.
Commercial litigator Erik Groothuis has a unique perspective, having both engaged experts as an attorney and worked as one:
As for my vetting [attorneys, as a potential expert witness], first, I make sure the subject matter is something I have expertise in. Typically, that would have already been covered—otherwise [they] wouldn’t be speaking to me—but also from the initial conference, it’s an opinion that I’m comfortable giving, which is not always the case. Sometimes they’re looking for somebody to say something that’s not my understanding of the way the law is practiced, or the way that New York law speaks to issues. [. . .] On the other side, having done it much longer, [I would offer] this is something I’m more comfortable with. First, they’re looking for an expert that has subject matter expertise but is also able to present themselves effectively both in deposition and in court. Somebody they can work with and that they can rely on to meet deadlines. All of which I’m familiar with from having done it as litigation counsel.
Check for Conflicts
Running a conflict of interest check is among the first tasks for an engagement. It’s safer to decline a potentially conflicted case than to navigate the fallout later. Forensics expert Sheila Lowe maintains detailed spreadsheets to track past and current engagements and flag any potential conflicts:
The first thing to do is to have a conflict check and make sure that you know who the parties are. I think of a colleague who worked on a case and then about a year later got a call from another attorney and accepted the case. They did the whole examination and then discovered, by a third party, that she was on the other side. She was giving opinions on both sides and that’s a bad idea. It’s embarrassing, so you want to do a conflict check and make sure you’re not involved. The way I do that is I keep a spreadsheet of all of the cases that I take on.
Availability
Experts must have sufficient time available to accept an engagement. Highly sought-after experts and those in specialized fields may have significant pre-existing commitments. Attorney and publisher Carl Taylor notes:
To me it’s like, “Are you going to be available?” [. . .] Twenty percent of the experts do eighty percent of the work and it’s hard to then calendar them. You become almost like a project manager and the judge doesn’t care if your expert is busy. That’s the key—I want to look for availability. I also want to look for someone who is what I call an authority. Somebody who has expertise—that gets you in the door. To qualify as an expert, you need expertise, but you also need to have narrative, the ability to take your data and all the cold, harsh truths of the case and spin it to a judge or jury in an understandable way. Also authenticity—do they seem like they believe what they’re saying? [. . .] It’s like having a good dinner guest. An expert needs to be somebody that has a sense of humor. There’s a personality there. It’s not just data and numbers, because that’s not going to translate to the jury the way it needs to.
Forensic cosmetology expert Laura DuPriest is as accommodating as possible, but declines when there the timing just doesn’t work:
In a couple of instances, when the attorney had a schedule anticipated that was faster than they [allotted time] for, they asked me for a report the next week. I let them know what my parameters are and what my availability is and see if there’s a way to work it out—or I don’t take the case. Secondly, is to make sure—if I’m delayed, sometimes I’m working on a report and have promised it will be arriving in the next week, then an emergency situation will come up [involving] a case from a month ago; I’ll let them know I’ve had a slight delay and I will be circling back to their case on this day. I find if you have good communication skills and let them know what’s going on you can always reach an agreement.
Stay in your Lane
With adequate availability established, experts will get a rundown of the facts to determine if their expertise is appropriate for the engagement. Saying “no” is always an option. Mycology expert Dr. Nik Money explains:
[B]oth sides are trying to figure out if there’s a good fit. For me, I don’t want to waste anybody’s time. I certainly wouldn’t charge anything for an initial consultation, Zoom call or whatever for an hour to discuss the case to see if there’s something that I might add [. . .] Sometimes there’s not much that I can do. And saying that up front saves everybody’s time. The attorneys for their side are also looking for this. What is it that this individual can do to aid us in this research phase [or] this discovery phase? That’s helpful, and often you can get at that information without learning [many] details of the case, which protects both sides. What are we doing here? What are your expectations? Then, do they mesh with the expertise that I can offer?
Dog expert Jill Kessler-Miller declines when she realizes a different type of expert is really what’s needed:
One of the things I’m always careful about is that sometimes it’s a case that needs a veterinarian. I am not a veterinarian, and when I say, “It sounds like you need a vet.” I have two people whom I refer [them to.] I’m careful, as I’m sure [other] experts are, to stay in my lane and do a good job.
Nevertheless, there may be an opportunity in edge cases where the attorney has limited options. Economics expert Dr. Philip Cross explains, “On [some] occasions, I’ll be chasing a lead where I don’t have tons of experience—it’s a case like that where I don’t have specific experience—but there’s no economic expert out there that has [this] specific experience. I can throw my hat in the ring along with everybody else, and we can see how I go.”
Venue Considerations
If an engagement takes place in an unfamiliar venue, there may be extended travel or a learning curve which experts should consider during the vetting process. Supply chain expert Steve Hopper has added venue questions as he has become more experienced:
I know to ask these questions now, but [when] I started out, I didn’t think to ask questions like [what] type of case it is—because first, there are different jurisdictions, and every state has [them]. There are federal courts—and the federal court system. And the rules of engagement—so to speak—vary considerably by state and by federal. There are nuances with respect to whether it’s a civil case or a criminal case. I’ve been picking up on this throughout [my career]. In my line of work, I’ve only had one or two cases that were criminal in nature. That’s something to consider.
Beware of Shoppers
Experts should be wary of engagements where the attorney seems to be soliciting a specific opinion, rather than a neutral opinion. Remaining credible requires a strict adherence ethics. Electrical utility expert Christopher Larson explains:
I’ve had cases that I’ve turned down where they’re asking me to do something that was not in my wheelhouse. [. . .] I was contacted by the plaintiff himself saying that he was trying to sue somebody. He said his attorney asked him to seek out expert witnesses to support his case. He asked me if I’d sign a non-disclosure agreement and all that stuff. The case had nothing—it wasn’t in my wheelhouse. [. . .] I turned that one down because one, why would the attorney have their client calling around looking for people unless they’re trying to fish to find somebody that would say what they wanted [them] to say. [. . .] There are a few things that you could do that would completely destroy your career and it’s not worth it. You’ll miss out on many future paydays for one payday that could end it all. Integrity is extremely important in this industry.
Dr. James Pastor refers to attorneys in these engagements as “shoppers”, and avoids giving his opinion on initial phone calls:
I use the caveat of “watch out for shoppers” [because] as an expert you have attorneys who are calling around looking for somebody that might say the things that they want them to say. My approach and advice is: if you’re the expert, listen carefully to how the facts are being conveyed. Lawyers will often talk in terms of conclusions when they’re not conclusions. They are characterizations about facts that the expert would need to be cognizant of. [. . .] From an attorney’s perspective, they’re going to want to hear that the expert is going to help them. The problem is, I as an expert, think you should never give an opinion on the phone, particularly on the first call if you’re just getting your feet wet in this case it’s incumbent on you not to give a quote-unquote opinion. The lawyer often wants you to go that direction.
Conclusion
Expert witness work begins before any report is written or testimony is given. Check for conflicts, confirm availability, review venue-specific rules, and stay within the bounds of your expertise. Declining cases that show signs of shopping protect your reputation and supports the integrity of the work. Experts and attorneys who take time to fully vet each engagement are better prepared, resulting in more effective engagements.
For over 30 years, Round Table Group has been connecting litigators with skilled and qualified expert witnesses. If you are interested in being considered for expert witness opportunities, contact us at 202-908-4500 for more information or sign up now!