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What Expert Witnesses Want from Attorneys 

March 6, 2024
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By Noah Bolmer 

With experience, you will learn which attorneys’ attributes are most compatible with your expert witness style. Every engagement is different, but many experts find that certain traits consistently lead to more productive, enjoyable, and successful working relationships. Of course, half of the expert-attorney relationship is the expert witness. Expert Mike Favetta recommends, “[Be] yourself, showing your personality, your expertise, and what you can do makes a good [attorney-expert] relationship. 

Recurrent themes include attorneys who allow experts to come to their own conclusions, communicate well, assist the expert where appropriate and want to learn what the expert knows about the subject matter at hand. Those are attributes of a good lawyer, from the expert’s point of view. 

Experts Expect Ethical Engagements 

An ethical foundation is the basis for any successful engagement. Expert Thomas McCloskey warns that attorneys should avoid any impropriety, whether implied or direct:  

A good attorney gives me the information and does not try to push me in one direction or another. […] They answer the questions, and I try not to waste their time. [. . .] We spend a large amount of time together; an attorney who lies to you is the worst. I had two telling me untruthful things, which led me in the wrong direction. One did not tell me [a] claim was denied. This was post-denial. A whole different set of circumstances than what I was led to [believe]. Good attorneys give you the information, let you sit down, and do what you do.  

Communication is Key 

It can be frustrating to expert witnesses when attorneys do not effectively and fully communicate. Dialogue should be direct and factual according to Dr. Laura Miele: 

From the onset of the phone call, [good attorneys] provides the facts, and do not give me their skewed facts. That creates a positive experience because [. . . if] when you get the case file and review it, it is not the way it was told to you, you then must have this difficult conversation with an attorney that will not create a positive environment. You want positive communication. [You want to hear], “This is what I need you for. This is what happened.” They are on point and communicative. They are not condescending.  

Not thoroughly communicating expectations can lead to a lot of extra work for both the attorney and the expert. Professor Gil Fried recalls: 

The [cases] that are more challenging are when an attorney says, “I want you to write a report.” [. . .] and then it comes back red lined for every single word. “I didn’t like this word.” If you are going to be that way as an attorney, tell me ahead of time so I can prepare myself and I can save you money instead of me spending all this time writing what I think is going to be a strong report.  

Strong pre-trial communication also aids expert witnesses on the stand. He continues:  

[A] great teamwork kind of relationship is when an attorney says, “Look, before you start the report, let’s talk about it and just discuss it. What are your thoughts?” [. . .] I’ve had cases where an attorney hasn’t given me all the depositions in a case [. . .] and if you don’t share that with me, I could be torpedoed on the stand. [When the judge asks,] “Did you think that was relevant?” It’s going to be tough for me to say, “Yeah, it’s probably relevant, but it wasn’t shared with me.” That’s not going [to] look good; I like to have that conversation […] “Is there anything else that might be out there that could be a benefit?” That’s how you have a good relationship. When you can have that kind of dialogue, that communication, that’ll benefit both parties. 

Assisting Experts 

Expert witnesses prefer attorneys that assist where possible. Providing staff can be a massive boon, according to expert McCloskey, “The other thing [good attorneys] do is loan you their clerical staff. You do your report, forward it to the attorney, and they give it to their clerical staff, who go through it, correct your spelling and syntax [. . .] They send it back to you and you approve or disapprove it, and send the thing back. They put it in its final form, which you sign.”  

Stay Engaged 

While attorneys frequently must juggle numerous aspects of a case, it is important to stay engaged with expert witnesses. Dr. Miele prefers to work directly with attorneys:  

I think another aspect of a positive relationship is that you can tell that the attorney is involved in the case. Sometimes, it is not that they are not involved, but they are busy, and they have a paralegal doing more of the contact with you. I prefer to have [direct] contact with the attorney [. . .] it leads to a more positive experience because it is smoother, easier, and less time-consuming.  

She continues: 

You have some attorneys who want everything from the beginning. They want to help you with discovery, which is fabulous because you can provide them with questions for assisted suggested discovery. Then you have attorneys who are like, “I need a report done last week” and they throw a stack of papers on your lap. If that happens and I am too busy, I have to turn it down. I cannot handle a case that I cannot fully work it up properly. 

Humility and a Willingness to Learn 

Great attorneys embrace learning from their expert witnesses. While attorneys are legal experts, they may have knowledge gaps in other fields. Expert John Lauhoff appreciates receptive attorneys:  

An attorney that wants to learn, and wants to listen, that’s key, I think. [I] find it a lot when I’m talking, they’re very quiet, and they’re just listening, sometimes taking notes. Sometimes either they or I will interrupt the other and I will apologize, and they’ll say, “Oh no, go right ahead there.” The one that hires you is very interested in learning everything that you know, and you’ve got to approach it as a teacher. Neither one of you can act as the superior person. You’re a team [. . .] They are experts on the legal strategies, they know what they have to do there, but they [may not] know anything about the subject matter, so you have to teach them the subject matter.  

Professor Rand Decker concurs, adding:  

I respect [attorneys’] skills as counselors of the law, and I find in a hurry that I’m attracted to people that provide some respect for what they don’t know, [but] I do, and that’s the basis of the relationship [. . .] [F]rankly, a lot of litigators don’t know yet what they don’t know, but the wise ones know [where] they’re ignorant. There’s nothing wrong with ignorance. There’s a lot wrong with stupidity, but if you’re ignorant, there’s room to [. . .] backfill that ignorance, to the point that you and the attorney are successful knitting together the technical arguments that the attorney will proceed with legally, and that you will back up technically. 

On the other hand, Dr. Istvan Jonyer prefers working with attorneys who are also knowledgeable in, or accustomed to working with other experts in his field, noting “In my experience, what makes a good relationship is a similar background. If the attorneys [. . .] are litigating the same types of cases that we’re working on together, that makes it a lot smoother than if they don’t have that background, [otherwise] It’s difficult to have a shared understanding and there are just a lot more opportunities for misalignment [and] misunderstanding.” 

Attorneys who are attentive to expert witnesses’ needs foster more productive working relationships. Experts expect and deserve an ethical foundation, an engaged dialogue, and a willingness to learn.  

Interested in being considered for expert witness work? 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! 

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