It’s an exciting, if a bit daunting moment – your first interview for an expert witness opportunity. What should you request? What information do you want out of this interview? And what should you do in the interview to increase your chance of getting retained?
Always request the party names prior to the interview, so you can check for initial conflicts of interest. More may appear later, but if you are conflicted off the party list it is best for everyone to know that quickly and for you to remove yourself from consideration early on. If you think you may have a conflict but are not sure, bring it up either before or early in the interview – the attorney will not want to discuss their vision of the case with you if they decide you are conflicted (examples of this sort of conflict may include things like a relation who worked for one of the parties or a presentation you gave many years ago on a related topic to a group strongly connected to one of the parties). Attorneys may have differing ideas about what a conflict is based on their own experience and the type of case they are handling, so it is best to err on the side of providing too much information regarding potential conflicts.
Once past conflicts, some experts prepare thoroughly for interviews, like Robert Sherwood:
I believe in doing my homework, so if I have an interview, I will spend anywhere from one to five hours preparing for the interview. I will read the complaint and any other documents they have given me in detail. I will not only read them but also examine them as if I were going to be questioned about them. I want to go into the interview knowing the background material on the case for several reasons. I prepare extensively for an interview, even if it is a minor interview where you only have 30 minutes. I am preparing for it, and that is important. I do not believe many experts do it. Generally, they do not want to know where you were born, but they want to know what is relevant. They also want to know that the typical question is, please match your background with the issues of the case. So, that question is coming. If you do not have a prepared answer, you are not doing an excellent job in the interview. I have coached other experts that have entered the business and said, ‘You have to prepare much more than you think you should because of what they will ask you. You will not do a good job if you do not have a well-prepared answer.’
Others go in with limited information such as only the party names (and occasionally, for very confidential matters, not even that), or for others the topic is something they have extensive experience handling and the odds of a conflict are minimal (think of an orthopedic surgeon interviewing on an auto accident matter where they will, if retained, give an opinion after an examination on the extent of leg injuries) so the amount of preparation is minimal.
Dr. W. Richard Laton has different preparation and execution strategies on the interview based on the amount of information he has going in:
I break it up into two parts. The first is, I give myself a heads up about what the case is. I might do a little research online. At least see if I understand something about it. Then, there is the one where I do not know anything. The first thing I do is introduce myself, and then ask them, ‘OK, what is the case about?’ What is your side of it? What are you thinking and where do you see you need help? Then, I come, sit back, and listen. As you are listening, you can start to go, ‘Okay, I can help them.’ Or ‘I can take part in that. I am not going to be able to do this other part, but it is okay. I have friends and other people who can do this other part.’ It is a small industry, so one day, the guy is on your side and the next day they are against you. I look at it as if I want to be able to help them, and if I cannot help them or if they have an opinion that I cannot back up even on the front side, I walk away. It is just not worth it to me and that has happened. If I think I can help them and they seem to have a reasonable approach to things, then I will just keep asking questions and try diving a little deeper until I get comfortable with what they are trying to ask for and what they are thinking about. I cannot give an opinion because you have not done any background work on it, but at least I can understand where they are. Particularly at this phase where I have been doing this for the last 15 years, pretty much full-time. I have a better idea of where they may be headed because I have been down these various legal cases both on the defense and plaintiff side.
Historically, interviews tended to be over the phone or, if everyone was in the same town, occasionally in person. However, as videoconferencing has become mainstream, many attorneys prefer to use those platforms. David Harkavy notes:
I think it is more useful for counsel to see the expert face to face, but now with the transition to video conference calls, it is certainly more acceptable. Counsel wants to see and understand who this expert is, and if the person is likable and able to teach a jury or judge. Oftentimes, lawyers will hire us damages experts on our ability to persuade a jury or judge or to see if this person has a likable personality that a jury will connect with. If the meeting cannot be in person . . . having that video call can be beneficial from the lawyer’s perspective. For the damage’s expert, it does not matter whether the discussion is video or our over-the-phone. In the initial phase, I am there to answer the lawyer’s questions and make sure the lawyer understands who I am and my background, et cetera, et cetera. It does not matter.
Once the call starts, the attorney will have their agenda to go through, sounding out the expert on their expertise, outlining the matter and their idea of how the expert may fit with the case, etc. Experts should have an agenda, too. Kevin Quinley outlines his:
Over the years I have developed a checklist that is another footnote in terms of trying to develop systems within my expert witness practice, so I do not have to reinvent the wheel each time. So, let me just walk through some of the highlights.
- Are there any conflicts? Are you being asked to take a case adverse to someone whose interests you are already serving as an expert witness? Is it a business conflict? You do not have any cases, but it is somebody who sends you a lot of work overtime and you prefer not to be averse to them. You do not have any public legal obligation legal comp but number one, are there any conflicts?
- Do you represent the plaintiff or the defendant? Have them identify both parties. Better yet, sometimes I will ask them to send me a copy of the complaint. That will help me get the lay of the land.
- What is the key issue for which you need an expert? That will give you an early read as to whether this fits within your strike zone and sweet spot as an expert.
- Is the case a state or federal case? The crucial reason is that in federal court there is a lot more that is required of an opinion and report in terms of rigor, thoroughness, and time. If it is in state court the client may just need a bullet point disclosure, so that is very impactful in terms of the written work product.
- What deadlines exist for the report or disclosure, et cetera? Are they etched in stone? Are they negotiable with any wiggle room? That comes up frequently when you get these short-fuse, 11th hour proposed retentions.
- How voluminous are the materials that need to be reviewed? Do not take generalities like ‘Oh not too much’ or ‘Not too many.’ Invariably there are. I learned the hard way by spending Christmas vacation going through multiple bankers’ boxes of documents at the beginning of my career as an expert witness on a short fuse case. You need to look at the deadline and the length of the runway that you have juxtaposed with the universe of documents. I will usually ask counsel in terms of the number of banker’s boxes with the idea that a banker’s box holds between 4,000 to 5,000 document pages, before saying yes and locking into a date. That is crucial.
- Another point is to emphasize to the retaining counsel is that you do not know what your opinions are going to be until you reviewed the material and make that clear they are not buying a hired gun in the sense of they are buying an opinion. They are buying my time and my expertise. I will not know if I can help them or not. I can give them an impression based upon what they sketch out, but invariably what they sketch out is black and white with very few shades of gray. As I say, the flattest pancake has two sides. You are hearing one side from the retaining counsel, but I try to make clear both verbally and then later in my engagement letter, if it is just me and the firm, that I make no warranties as to what my opinion will be. I will say this, If I cannot help them, I will tell them at an early stage.
Those are some of the high points, If the stars align, then I say thank you for contacting me. I will be happy to be a resource for you if it is a direct engagement not through an intermediary. I will propose that I send them a draft engagement letter. Tell them to take a look at it and we will take it from there. I tell them that I look forward to working with them and I only ask them how they found me because you want to track if it was word of mouth, through social media, or a website. That is useful to know to steer your marketing efforts in the future.
Dr. Laton includes some of the above and adds a few of his own:
Now I ask them upfront these questions:
- What type of time frame is there?
- What do you need?
- Do you need an expert report, or do you need us to do background work and then do a deposition?
- Is it in state court versus federal?
- Are you going to need me to do a site visit? Is it a case I need to go to the site?
- What is your time frame and is that discovery?
- Are we playing it for the defense?
That tells you what part of the system you must be in as far as the first or second shot over the bow. So, early on I did not do that. Now, I do that more and it may be because I am juggling more cases than I had before. I think it is something that gives me some expectations of what they are looking for and then I can either tone back or say, ‘Hey, no problem, we got this. Let’s move on.’
Now that you have cleared conflicts and gathered the information you need, in our next blog post we will tackle whether you should accept the assignment.
Round Table Group has decades of experience ushering new experts through the initial retention process. For nearly 30 years, we have helped litigators locate, evaluate, and employ the best and most qualified expert witnesses, starting with those we already know. Contact us at 202-908-4500 for more information or sign up as an expert.