Expert Perspectives: How to Give an Attorney Bad News About Their Case
Perhaps one of the hardest tasks for an expert is to inform an attorney when their theories of their case have a problem. They hired you for your technical knowledge and it is awkward to tell the person paying you that they are wrong. If nothing else, it may mean an end to a profitable engagement.
How Direct Discussions Can Help
As Terry Stroud recalls:
One of them was the highest profile case that I have had, based on my billing. I had to resign from the case. I said, ‘I cannot provide you with the direction that you need in this case because I do not think that is where this will end.’ You must have a frank discussion with the lawyers and say, ‘I cannot support this. If you are looking for somebody to support your position, you must find somebody else because my conclusion is not leading that way.’ The attorneys are disappointed and unhappy, but I have never had a case where one has told me, ‘Mr. Stroud, you are wrong, and we are right.’ They have said, ‘We appreciate your frank opinion, and we will consider it.’ I have had to resign for a couple of cases over that.
Get in Front of the Bad News
However, telling attorneys what they are up against is part of your job as an expert witness. Doing it as early as possible is very helpful. Craig Schlumbohm notes:
One of my mantras is when I get involved in a case if my lawyers do not know something, or I think that they are cruising for a bruising in a case, that they are going to lose that case, the faster I can report that information to them, the better, so we do not find ourselves 8 months to a year down the road fighting a bad case. There may have been a reason to do it. They may know that they had a bad case. Especially on the defensive side you may have a bad case, but you need to put up a fight. That happens. But as quickly as people can find out what you know, and what your initial feelings are, the better. It avoids uncomfortable situations later.
Have a Candid Conversation
Many attorneys greatly appreciate this candor. Attorney H. Bernard Tisdale chooses experts who will evaluate his approach to the case:
I try to hire the best experts who are going to tell me if my theory holds water. If it doesn’t hold water, guess what? I am going to pay that expert and classify them as non-testifying. The other side is not getting it unless they have developed some type of information that cannot be duplicated.
Open Communication Can Save Time and Money
Knowing this information early helps attorneys adjust their strategy and save their client as much money as possible. Expert Dr. Steven Feinberg recalls one such case:
I do a lot of complex regional pain syndrome cases, and this was a case of a young man in his late teens who had been hit on a bicycle by a car, and the defense had hired a neurologist who said he examined him and said he didn’t have CRPS. This young man was being treated at Stanford, where I am on the faculty. I had never seen him, but we had multiple Stanford and other doctors saying that he did have CRPS. I looked at the neurologist’s report and said his exam supported that diagnosis. In this case the defense attorney […] was worried about the case and asked me to kind of be the behind-the-scenes guy. I evaluated, but never saw the young man, obviously, and I asked the attorney to drive down to my office. I thought this was such a big case and look you cannot use me as an expert and your neurologist because it is clear to me that this young man has CRPS, so you are going to get killed at trial. The expert witness on the plaintiff’s side is excellent, knows his or her business, and they settled the case that afternoon and the young man got a pretty good settlement. [However,] from the defense point of view, they saved a lot of money. I am not sure that is the best example, but I think it is just important to be helpful. Do not exaggerate or try to make the attorney happy.
Uncomfortable as it is, remember that part of your job as an expert is to tell attorneys about issues with their theories as early as possible. This may cause some short-term problems but will help their end client in the long run. It’s always best for attorneys to understand the hand they’ve been dealt.
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