As with any relationship, when an expert witness first starts working with an attorney, one of the top items on the agenda should be determining expectations. As an expert, you need to understand both what the attorney needs and expects of you, and also ensure the attorney has reasonable expectations of what you need and what you expect from them. This is one of the most difficult steps in the engagement — neither of you may have any experience managing projects! — but also very important.
Dr. Susan Hewlings notes some of the issues she has encountered:
The biggest thing we learned is to stay in close contact with legal because oftentimes we are coming from two different backgrounds. Doug and I come from a science and clinical background. Sometimes we will try to interpret what they are asking us for in reports, and we are wrong. We make sure to keep in close communication and ask questions from our legal sources. We do not want to do too much work and then have them say that is not what we wanted. We have had that. We have done this whole report, have done this total deep dive, spent hours on it and the lawyers said, ‘This could have been in a three-sentence statement.’ Making sure you are clear on what you are being asked and making sure your deliverable matches your ask is important.
In most cases, you are part of a team. That team minimally includes you and the attorney, but it may include multiple experts, multiple attorneys, and sometimes additional consultants. Professor David Rockstraw outlines some of the questions you should be asking:
Your interaction with the attorneys and counsel becomes very critical because you want to understand your role as an expert in the case clearly. Sometimes cases are complicated and multi-pronged. Different experts have different responsibilities, and you need to know what it is that you are there to testify on. You then rely on counsel to explain the legal status of the case to you. What are the laws that are applied? What bounds do I need to express my opinions so report writing is pretty cut and dry?
Dr. Douglas Kalman outlines the types of questions he tends to ask to make sure he understands the expectations and as much of the schedule as he can:
One of the things that we have learned is something that comes from research. When you are working as a principal investigator or a co-investigator in research or contract research, one of the things that you look to do probably in real and regular life is managing expectations. In this way, when you are working with law firms on complex or even easy cases, you have to manage the expectations of what date the report is due. What highlights are you looking for? What are some of the strengths and weaknesses? Where can we introduce things, you may have not thought of? I am thinking of these as I am meeting the lawyer right on the other part. We like to manage those types of expectations and get a clear-cut calendar timeline of when everything needs to be pristine. That helps because once you have good communication it is easier to be successful in what you are doing. Whether it is successful for the client in the ultimate, is something different. We have worked both sides if you will. There are many types of cases that come up.
In pursuit of the answers, Jean Acevedo’s advice focuses on drilling down and asking any question you have even if you’re worried the attorney expects you to already know the answer:
One message for both attorneys and new experts is to be curious and ask questions. Do not feel like you should know this. [Maybe] you do not want to look silly and ask. There are no stupid questions, only ones that you have not asked and are going to kick yourself for not asking. For attorneys, remember that you are probably not working with another attorney, so make sure that your expert feels comfortable enough to ask you questions about procedures and processes. Do not make the expert feel silly, which was why they did not want to ask you in the first place. Make sure that both sides work collaboratively. You are all working towards the same goal and hopefully, have a good result for the client, whoever it is that is being represented in whatever action.
If you don’t plan ahead, things can go wrong. Expert Dr. B.J. Hawkins describes what can happen if you don’t plan ahead:
I had a case and the attorney repeatedly said we would talk soon and the soon became the day before the trial. […] I had a record that I had emailed, made telephone calls, texted, and had not been able to get the attorney’s attention. In the briefing the day before I realized that it was an inexperienced attorney, number one. Number two, the staff had not taken care of my hotel reservations properly. I did not have a room when I arrived, and it took me 3 or 4 hours to get in a room. I was exhausted after the plane trip and during the briefing session, which turned out to be late in the evening because the attorney kept pushing it back, I was sleepy, tired, irritable, hungry, and the trial started at 8:00 o’clock the next morning. What I think was important is that it was unfortunate for the clients, but it was also unfortunate in terms of how I presented myself as a professional. I learned the lesson that if the attorney could not make time to communicate with me in sufficient time, then I needed to draw the line. If an attorney would not communicate with them, some experts would say no, I do not want to annoy or get on the bad side of counsel, and I would say is that you have to look at your reputation [and realize] that what you say is part of a permanent record. You have an obligation to yourself as a professional, to professional ethics, and to the field to sometimes draw the line.
On Round Table Group’s side, many of the issues we see between attorneys and experts come down to a mismatch in expectations. Setting this up at the beginning and communicating changes is key to keeping the relationship strong as the case moves forward.
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 as an expert.