Once you have signed the engagement letter with the attorney, it is time to set up the expert witness project. While you need the details (what you need to do when), first you need to set up lines of communication, set expectations and make sure you understand the rules, particularly the rules of privilege, that you will be working under. Our next two blog posts will cover expectations and privileges. This one is dedicated to communications and trust.
Everything flows from communication and trust. If you are unable to connect with the attorney team, then the project is dead in the water. As Professor Robert Romano says:
There are two things: communication and respect. Have open lines of communication. We all understand many things are going on, but if you retain me as your expert, let’s have an open dialogue. Then, respect between the attorney and the expert is important. If you show respect, you will get respect back, and you asked about that for cross-examination too. I respect the other side. I respect that they are working hard, and I think that when I show them respect, it is hard for them not to show me respect. I always show deference to the court, but always show deference to the attorneys. For the most part, they are working hard. I think that is important also. So, communication and respect.
It is tempting to put all of the onus on the attorney to keep these lines open. Expert Dr. Eric Cole started out that way, but learned that things go more smoothly if he reaches out reliably as well:
The biggest thing I wish I knew [when I was a new expert] was what the attorneys are dealing with from their perspective. It is easy when you come in [as] an expert you assume [the attorney] has a plan. They know everything, and you are the only expert they are using. When I realized how much work the attorneys have to do, like constantly filing complaints… they are doing so many other things that they need an expert that can coordinate with them and run with the baton. In the beginning, I would keep waiting for the attorneys. Then, I would get the phone call asking, ‘Eric, how is the report going?’ And I would say, ‘What report?’ They’d say, ‘The report is due in 48 hours.’ I said, ‘I did not know there was a report due in 48 hours.’ We went back and forth and realized that they forgot to notify me. But I failed to reach out and inform them. So, the approach I use today is, what can I do to make their life as easy as possible?
When I start a case, I try to get the entire schedule of when fact discovery ends and when the report is due. I know how busy the attorneys are. This way, I have a team that can stay on top of it. Recently, we had a report we thought was due January 15th. So, we reached out, and the lead attorney asked, ‘No one contacted you?’ We said, ‘No.’ They said, ‘We thought somebody was working on the report with you.’ We could get in front of what could have been a fire drill because of the holiday season. So, the big thing is to do as much as possible for them. It would be helpful if you were the program manager who runs alongside the attorneys with their schedules. I find that makes a world-class expert witness. You need to manage and run the program. That is not my skill set, so I have a team focused on ensuring we are on track.
As you build that communication bridge, you also need to focus on building trust. Expert David Harkavy queues that up from the beginning:
I would say one item is that when hiring an expert, it is a ‘two-way street’ based on trust. Certainly, the lawyers trust the expert to perform the work at their direction and with objectivity and integrity. The expert trusts the lawyers to provide the expert with sufficient relevant information for the expert to perform a reliable and supportable damages calculation and protect the expert when opposing counsel goes after the expert. For me, I have many more years left. I do not want to be excluded for any reason. Thankfully I have not been excluded for any reason and I want that to remain the case. When I have an initial call with counsel, I explain that they are hiring me because you trust me, and I am accepting this opportunity to work with you because I trust you.
If you’ve built a strong foundation of trust, then you have a greater level of comfort if you need to explain where a strategy is going wrong. Dr. Chuck Easttom suggests a methodology for giving your attorney bad news:
First of all, make sure you are correct. Secondly, do it with some technique. Be careful about how anytime you are going to tell someone you think they are wrong that is a delicate situation, and you need to explain. For example, you could tell the attorney that if I take this position, you understand the other side is going to have an expert, and here are the ways I would attack that position. If I were hired by the opposing side, I am willing to bet their person does that. Let them know how it could undermine their case. I have never had it get so far that I had to threaten to quit, or someone insisting on me saying something I did not want to say. I have never had it go that far. I cannot say it has never gone that far for another expert, but it never has for me. There is usually a little back and forth. Exactly what positions I am comfortable with versus what they would like me to be comfortable with, but it usually gets resolved easily with not a lot of problems.
If there is a breakdown in communication and trust, then things may go a bit off the rails. Expert Jean Acevedo had a matter where, after repeatedly requesting information, she needed to create her report, she began to get a little suspicious:
I finally wrote. I had before and I had called, and I am like, ‘I am not getting a response. Something tells me they do not want me to have what I am requesting. If I was their expert and there was something I could not get I would not be used and embarrassed in a deposition or court of law. Finally, I wrote an e-mail saying, ‘I have tried several times to see if you could get me ‘X.’ You know I am right. Now, I am going to assume that ‘X’ does not exist, or you cannot get a hold of it. So, I am going to stop my work. if anything comes through and you still need my assistance. Please let me know.’ I ended it very nicely because I did not know the circumstances or if there was something. I never heard another word. So, I think my instincts were good.
Lastly, it is important to remember that cases often go dormant for long periods of time, so sometimes no response from an attorney just means that the case has become less important for a bit. Sometimes they will start up again, and sometimes they settle or otherwise resolve after months (or years) of dormancy. Expert Jonathan Bernstein describes a fairly common occurrence:
[The attorney] made sure I was well-briefed and sent me some good links and guidelines to research the general process. He was good. Then, the law firm that we both work with directly, [that] was where months would go by, and we had no idea. When we came back with another question, we would not hear anything again for a while. Ultimately, we just heard that something technical had happened and the case was going away.
Regardless, if you have set up strong lines of communication and foundation of trust with the attorney team, you should be confident in asking questions, getting the information you need, understanding expectations and meeting your obligations. Similarly, the attorneys should be able to trust that you will keep them informed of what you need and when you need it to meet their expectations. These are the building blocks of a fruitful relationship.
If you are interested in being considered for expert witness gigs, consider signing up with Round Table Group. For nearly 30 years, we have helped litigators locate, evaluate, and employ the best and most qualified expert witnesses. Contact us at 202-908-4500 for more information or sign up now!