New Rules Affecting Experts Begin December 1st

Attorney Robert Ambrogi discusses the changes to Rule 26 of the Federal Rules of Civil Procedure that will protect some communications between experts and their attorney-clients, such as draft expert reports. Read the entire article in the IMS newsletter.

Manners Matter for Expert Witnesses

As an expert witness, your demeanor can be critical to how triers of fact view you, your report, and your testimony. Respect, politeness and composure can make a big difference in how the jury sees you. In "Effective Expert Preparation and Presentation," in The Advocate Magazine, May 2010, the Honorable Peter J. Polos (Ret.) writes that in addition to "Yes, sir/ma'am" and "Your Honor" that:

Experts should not let their tempers show no matter how bad the behavior of the questioning attorney. If the expert maintains his or her composure and the cross-examining attorney does not, it can only negatively impact the other side. Some of the the worst expert testimony I saw was due to argumentative or defensive testimony by the expert on cross-examination.

I will add from a marketing perpective that word gets around among attorneys. If you are known as composed and well-mannered, you are more likely to be referred and recommended to other attorneys.

(Unfortunately, this article is not available online but I highly recommend you read the entire article if possible. Judge Polos has valuable advice on several areas of expert witnessing)

Expert Witnesses from a Juror's Perspective

I frequently read advice and reactions from attorneys and judges regarding expert witnesses. It is rare, however, to hear it from a juror's perspective. Here are one juror's comments after a recent seven day trial:

Expert Witness for Plaintiff [EWP] was not board certified and claimed the reason he wasn't was that it was too expensive.

EWP was flown into [city X] from [several states away]. This was suspect , as we do have a leading medical center here; surely they could have found an ontological hematologist from [city X]. Would have set better with [city X] jury for sure!

EWP' s attitude -- I'm right and everyone else is wrong -- was simply not digestible by this jury. It just didn't wash. There not standard of protocol for this treatment, so there can be no absolutes.

EWP did not address the jury, but plaintiff's lawyer.

EWP was not cool or calm.

The Expert Witness for the Defense [EWD] was excellent. Spoke directly to the jury, was board certified...EWD was careful to state, that for this patient, this situation, the doctor made right decisions. Plaintiff's lawyer was able to get EWD to agree to many things, but EWD kept clarifying with, "I agree to this, but not for this patient in this situation."

Five Important Expert Witness Rulings

Whew - it's been a big year for legal decisions involving expert witnesses. Attorney Robert Ambrogi at IMS Expert Services reports on the Top Five Expert Rulings of 2010 (so far). Take a look - these rulings could affect you.

Keep in Contact with Attorneys

We frequently talk about sending out professional announcements and the like as a way of staying on the radar of your prospects. I recently heard from two experts who are being innovative in this regard. One expert witness recommends referring a potential client to an attorney on your list and letting him or her know you are doing so by asking them if it would be okay. (True networking is about providing value...)

Another expert keeps track of law firms' charitable events and functions such as golf tournaments and either participates of just attends. The key to this type of marketing is not to go and hand out business cards, but rather to meet people and form relationships. And remember, listening actually creates a better impression than talking sometimes.

Hostile Opposing Counsel - Part 2

Continuing the input from expert witnesses on dealing with hostile opposing counsel in deposition:

I have been doing expert witness work for 25 years. Attorneys basically have two tactics. They can either attack your opinions or attack you personally. If the whole deposition is about attacking you personally, you know you have won! If you the attorney could attack your objective opinions, he would certainly do so. If he refrains from attacking your objective opinions, he knows you are completely accurate. Therefore, since he can't directly dispute your opinions, he can only attempt to discredit you and therefore, by implication, your opinions.

If the attorney spends most of the deposition attacking how much money you make as an expert witness or how you testify more for one side or the other, or is extremely obnoxious and aggressive, just remain cool and calm. You have already won the case and that attorney knows it all too well. His only hope is to get you crack and say or do something stupid. Like you said, these tactics are primarily in depositions where they can't be "seen". These kinds of tactics are rarely used in front of a jury because the jury would see them for what they are. In addition, while you can't always depend on it, judges may limit some of these theatrics as your client attorney may object to the witness being abused.

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Take a look at Federal Rules of Civil Procedure, Rule (d)(3)(A) regarding Motion to
Terminate or Limit deposition by witness.

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This all brings to mind a deposition I had in which the opposing counsel made a very big deal of the fact I had not brought exactly some financial data on my expert practice he had requested (I had brought something equivalent and in fact more responsive to his concerns). He then proceeded to politely but persistently ask me the same question over and over, in different ways but always the same question. My answer was critical to his case, and I answered politely but firmly each time. He never got what he wanted, and politely made sure I knew he was not happy about this. I thought he was a bit of a jerk.

Several months later he called me and asked me to work with him on a case. He introduced me to his partners as an expert who "is really good". It was only then that I realized he had been "trying me on for size" in that first deposition. Since that time he and his partners have become regular clients. I have come to understand he is in fact a pretty nice guy, and a well respected attorney. Learning how lawyers play the game is one of the many things I enjoy about my expert practice.

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Ask him why he is high-fiving and being insulting off camera (or whatever) and get it in the record.

Hostile Opposing Counsel - Part 1

In our newsletter, we've been discussing how expert witnesses can handle hostile opposing counsel during depositions. The stories and advice keep coming and are too good not to share. So from the experts who've been there:

I once had an oppposing attorney scream at me 2 inches from my face and spittle peppered my head. I then said "let the record show the opposing attorney," and then described his antics. He was a perfect gentleman for the rest of the deposition.

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I think the best defense with these types of attorneys is to maintain one's composure.

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I think if opposing counsel gets too far out of line, your attorney should step in and say something. That's happened to me only once; my attorney "suggested" that I be treated as a professional or the deposition would come to an end, or he would call the judge. Opposing counsel apologized and backed off.

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Here are some strategies that work well for me. I request that the attorney either repeat a question and ask for clarification (I totally understand the question) which slows the process and helps keep the opposing counseling in check and off point. Another option for me is to start speaking slower, take extra pauses and lower my speaking voice or count to five before answering a question -- sometimes silence is a great leveler. All of this is done as I smile and answer the question in my own way and in my own time. At other times I state that I need to take a break.

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"Why are you harrassing me?" in order to get this into the record. Then, the attorney denies this, but he changes his manner and it puts him off his plan of attack.

Check back for part 2.

Expert Witness Reports - Details Matter

A few months ago we discussed expert reports and their importance as a marketing tool (an available example of your expertise and work). I'm sharing one of the responses we received:

Don't forget to mention spelling.

I saw an attorney totally destroy an expert over a single misspelled word!
Actually, it was beautiful to watch - since it wasn't me. This attorney knew
damn well what the misspelled word was. Instead he asked me, what "XXX" meant.
As I started to explain, the other expert kept interrupting to correct the
spelling and this attorney kept apologizing to me for the interruption. By the
time that attorney got through, the poor expert had been censured by the judge,
after admitting his report "was mistaken with error."

Details matter!