Expert Witness Advice: Delivering Bad News to Attorneys
By Noah Bolmer
It’s inevitable. At some point, most experts must deliver news to their engaging attorney that may not help the case. Fortunately, not everything is as it seems, as bad news is often a matter of perception. We’ve asked our guests on Engaging Experts how they handle delivering bad news.
Pulling Off the Band-Aid
Delaying helps nobody, so deliver negative news as soon as possible—without sugar coating. Biochemist and health physicist expert Dr. David Stephens puts it succinctly, “No, I don’t think you can embellish [bad news]—send flowers or anything. You’re going to have to be straight up with them. They don’t want to waste any more time than necessary.”
Health and safety expert Jonathan Klane agrees, adding:
I think they very much respect and appreciate getting any news early on so that they can make decisions about direction and investing in a certain strategy or path. And so, I try not to consider to what degree this might be good news or bad news for my client. It’s just, “Is it relevant? Is it information? Is it something I’ve uncovered in my research?” And then you alert them to it, and have that conversation where you say, “I’m not sure how this affects [the case] because I acknowledge that it’s not my role to figure that out—but, for me, this is a serious ‘whatever’ implication. It may favor things in this direction, or it may not favor things in the other direction.” A lot of the times, there are several ways of looking at that—and what I’ve learned is that I might think it’s not the best news, and then the client will come back and say, “Got it. I appreciate it. We’re not going to go in that direction. We’re going to go in this other direction.” They don’t necessarily see it as bad news, they see it as data that can help them take action in a more strategic way.
An ounce of prevention is worth a pound of cure, according to meteorology expert Mike Favetta. Attorneys who bring in experts with plenty of time to become acquainted with the case have the best chance of catching negative facts before they become bad news. He advises:
I really think that early is key—we all agree on that. And it’s one thing I mention in my pitch during the initial interview stage. I say, “Please don’t wait to loop me in on everything until you’re down the line and finished with discovery, and then you need your expert report”, whether it’s for the plaintiff or the defense. “Keep me involved in discovery and share the documents with me, because now is the time”—especially when discovery is open—to have all of those sides, tangents, and information available so you’ll know what’s in the opposing expert’s report. You can get ahead of it and prepare more easily. It sure beats coming up with a strategy down the road and having them ultimately spend more money for an expert to find more information and go a little more in-depth when your trial is days away.
Shooting the Messenger
It’s best to deliver any bad news directly to the engaging attorney, not the end client, according to forensics expert Sheila Lowe:
I find that when I work—and I prefer to work with attorneys—sometimes I work with [end clients]. I like the layer of the attorney between us so that I don’t have to give them bad news. I find that with most attorneys—not all, but most—that I work with appreciate knowing the truth because if [my] opinion is something [negative], they can strategize. Maybe, I have to tell them “I think your client is lying to you.” I don’t want to say that directly to the client.
Reframing Bad News
Remember, your job as an expert is to give a neutral opinion, not advocate. Imaging forensics expert George Reis likens expert witnesses to guides:
I’m going to start by saying I’m not sure that I would call providing the truth about the analysis as being bad news. One of the things that I consider the role of the expert to be, is like in the movies. Not the hero of the movie, but the guide. Yoda to Luke Skywalker. The attorney can be Luke Skywalker. I want to provide the attorney with the information that I have in my field in order to help them understand it, so they know how it’s going to work in their case. If I find that the person in this video who is being accused of bank robbery is indeed their client, it’s good for them to know that as soon as possible. It may not be the news that they want to hear, but it’s news that’s valuable to them just the same.
Bad facts are not necessarily bad news according to clinical and forensic psychologist expert Dr. Jolie Brams. There might be opportunities to reframe facts by approaching them from another angle. She advises:
I’ve had a couple of cases in the many years I’ve done this, that [there was] truly bad news. There’s absolutely nothing that I or any other expert can do to help a defendant—that’s in criminal cases. There’s nothing that anyone can do in terms of sentencing. There’s nothing diagnostic. There’s nothing myself—or I believe, anyone else—can do. However, bad news is not always bad news.
She continues:
Most of the cases I have [contain] bad facts. [. . .] How do you deal with the fact that a defendant had a prior criminal history? How do you deal with the fact that in elementary school, he broke a desk? What do you talk about? Well from my perspective, I would talk about the whys. We don’t hide facts; we deal with them. Our job is to deliver bad news, but with good news with it—if at all possible, with some other way to be of assistance to that team or that attorney. Yes, it is our job to deliver bad news. Many times, I’ll hear about a situation, and I will warn people up front, “I think that this might be more bad news than good news, but do not hide anything from me [. . .] Because if I’m on cross and don’t have everything given to me, I might as well not testify.
Neural engineering expert Professor Marom Bikson breaks down some of the nuance:
Often it’s not a simple yes or no as far as the answers that they wanted to hear. You’re trying to unpack the facts, or trying to help them understand the evidence at play. The lawyers are developing their own strategy. They’re trying to figure out what arguments they can make and what arguments they should not make. [I]t’s not necessarily good or bad news. You’re trying to help them understand the facts and where those facts may lead. That will help inform them [about] what kind of strategies they should take. [I’ll say], “This is a direction we should go on. This is a winning argument. This particular argument is going to be very hard to support.” [On many] of the situations that I’ve had a chance to work on, there are many decision points where the lawyers can choose the hill that they want to die on [. . .] you’re giving them the best possible information, so they come into it equipped to pick their battles.
Conclusion
Expert witnesses should deliver any discoveries—positive and negative—promptly, so that the trial team has time to shift strategy if necessary. Avoid making assumptions, and consider any opportunities that arise to mitigate “bad facts”. Ultimately, engaging attorneys will appreciate your candor, and dedication to neutrality.
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!