Thursday, August 31, 2006

Timothy Snoddy

We want to thank all of our readers who sent their heartfelt condolences on the tragic death of our client and dear friend, Timothy Snoddy in the Comair planecrash in Kentucky this week. Your words and kindness meant a great deal to my mother Rosalie, myself, and to Tim's family.

Untapped Resources for Expert Witnesses

With the information overload we all suffer from, it is easy to settle for the obvious resources for advice, such as material written specifically for your field or industry, or designed especially for expert witnesses.

But if you limit your search in this way, you may be missing out on some great 'insider' information. Articles, newsletters, blogs and books written by and for attorneys can provide a treasure trove of knowledge you can use to improve your skills, performance and success as an expert consultant.

For example, one newsletter I subscribe to is Trial Tips Newsletter by Elliott Wilcox, a Florida trial attorney. In the last few issues he has been sharing tips on creating a clear appellate court record, that he came up with after conversations with a dozen or more court reporters. One of many points experts could find helpful:
"Look up and speak for the record. One of the less obvious tips the court reporters shared was about how your posture affects the record. When read [from your notes] or quote extensively from [records, datasheets, interviews], you probably have a tendency to talk into the piece of paper or down to the paper on your desk. When you look at your papers, rather than looking up ... your voice comes out mumbled, you speak too fast to be understood, you don't pronounce each word individually, and your record comes out garbled. To create a better record, stand up straight, minimize your dependence on your notes, and look at the person you want to persuade."

Don't forget to investigate blogs written by and/or for attorneys, like one by the Association of Trial Lawyers of America. Here's an excerpt from the July 11th post of Tuesday's Litigation Tip
"Do not ask the expert "Why?" or "How can you say that?" (unless you can effectively handle the answer and unless you know in advance that you can effectively handle the answer)."

With books, you'll need to set some criteria or the choices available will overwhelm you. One that I like, written to help lawyers work with expert witnesses, is Expert Rules - 100 (and More) Points You Need to Know About Expert Witnesses by David M. Malone. Here's the kind of advice he offers attorneys about experts:
"When two experts are reasonably equally qualified, choose the expert with whom you feel more comfortable working and spending time. If you and the expert do not enjoy working together, then you will tend to avoid the frequent communication and long hours of preparation that are necessary to succeed. You can think of this as the 'glass of beer' test: if you wouldn't enjoy sitting down and having a glass of beer with the expert, then you probably shouldn't hire her, if you have any choice at all. Expert work is hard enough without overlaying it with personality problems (even if it is your personality that is at fault)."

As long as you take into consideration that the intended reader of these publications is attorneys, I think you might find some to be quite helpful. I'm putting together a 'how-to guide' with tips on finding legal articles, blogs, and newsletters that relate to specific areas of expertise and particular issues. I'll get that done over the holiday weekend and post it here next week.

Monday, August 21, 2006

Expert Witness Breaks the Silence

"I'm out in the wilderness here," is the kind of comment I hear frequently from experts. By it's very nature, being an expert to the legal community can be isolating. You've spent the better part of your life in your field, not the courtroom. Your contemporaries may or may not be practicing expert consultants. And, even if they are, you must watch what you say, do, write, etc., because it can all be misinterpreted or intentionally distorted in an attempt to discredit you.

So, this weekend (when it was too hot to do anything else!) while going through the various stacks in my office, I was excited to run across a particular article again. Printed in Legal Affairs back in March of 2003, "Opinion for Sale: Confessions of an Expert Witness" is a rare glimpse into the raw thoughts of an expert witness, from his initial experiences in the 1970's and the evolution of his practice into the present. Author Steven Moss expresses some ideas that might be offensive and others you may say, "Oh, me too!"

Either way, I think it's a unique take on this very unique field. Beware, it's a long article; you might want to print it out and read when you're standing in line somewhere. Let me know what you think.

Thursday, August 17, 2006

Blogs Are Not for Expert Witnesses

Every once in a while, an expert will approach me about creating a blog, having heard it was a great marketing tool and could increase traffic to their website, etc. And look at all the lawyers and firms that have blogs, right?

Well, No. As many of you know only too well, general marketing principles and guidelines for professional service providers simply don't apply to the expert witness. Fair or not, the rules ARE different for experts. You will quickly work yourself out of contention if you start to promise results or, in marketing speak, "benefits," in your correspondence, marketing materials, or website.

In a similar vein, you do not have the luxury of placing your thoughts and reactions to events or even your commentary online, unless you are VERY, VERY careful and even then I just don't recommend it. Statements can so easily be taken out of context, your opinion and industry methodology can change over time - anything and everything, especially on the Internet, can and will be found and used, either to exclude you from the list of experts to choose from, or by opposing counsel to discredit and possibly disqualify you.

The following, while written as regards writing articles and making presentations, can also be applied to blogs. This is one of my favorite passages from The Expert Witness Marketing Book:

"All of your writing and speaking is discoverable and can be cussed and discussed with you in deposition and in court. Be careful. Be consistent. Investigate, verify, and cross-examine your facts. Proofread, proofread, and proofread again."

And I say it just isn't worth the risk. There are too many other time-tested, proven and effective methods for getting on the radar screens of the attorneys who need your services.

Thursday, August 10, 2006

Attorney "Disciplinary" Agencies

In response to the question in last week's post (see below) about collecting fees due from attorneys, one reader sent me to a page on the ABA site of disciplinary agencies for attorneys, listed by state. But, as another expert illustrates below, contacting these agencies may not be much help.

" client even went so far as to sue me to get the retainer back. In discovery I found out she told her opponent I had rendered a favorable opinion for her client so he settled. I had not even rendered an opinion at all, though I was working on the case when she called to say it was settled. Since I record all of my calls, I spoke to opposing counsel and confirmed she lied to him. I turned the tape over to the Ethics Board in NJ and the investigator bent over backwards to defend the lying attorney.

This is why experts get upset. You have a blatant case of unethical and possibly illegal conduct on the part of an attorney and the Ethics Board does nothing and to add insult to injury, is rude and discourteous besides!"