Expert Witness Income - Nobody's Business

How much do you make testifying as an expert witness? The Appellate Division of the Superior Court of New Jersey has ruled that you should not be required to share that information. Attorney John Day has all the details.
(Hat tip to Toby Edwards at Round Table Group)

Tips for Testifying

Attorney Elliott Wilcox has some tips for expert witnesses on testifying. Having served as the lead trial lawyer in nearly 2oo jury trials and numerous non-jury trials, he might know a little about this . Mr. Wilcox cautions that this is just a quick primer:

Don't get rushed. Get into the pattern of "Question - Pause - Answer." By ensuring that you pause after each question (regardless of the question's difficulty) you'll avoid getting pushed into rapidly answering the defense attorney's questions.

Talk to individual jurors, not "the jury." Make eye contact with individuals. Think "conversation," not "soliloquy."

Remember that you're always on stage. Maintain a serious composure before and after you testify. The jurors might see you as you drive into the courthouse, in the hallways as you wait to testify, or after you've finished testifying.

If you make a mistake, correct it immediately. You've heard that "it's not the crime, it's the coverup." Jurors will forgive you for making a mistake -- they won't forgive you for covering it up.

Don't look to [your attorney-client] for answers. [He/she] can't help, and it looks like you can't take care of yourself.

Don't be a jerk. Unfortunately, it needs to be said. You can have all the brains in the world, but if you're a jerk, the jurors won't want to listen to you.

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!

Publicity, Practice Management, and More

I'm finally catching up on my reading and found some gems:

Being mentioned or quoted by the media can be a very effective (and inexpensive) marketing tool and who wouldn't want to be mentioned in the New York Times? See some original tips to accomplish that in this post at Nolo's Legal Marketing Blawg.

Worried about the economy's effect on expert witnesses? Head over to the Expert Witness Blog to read Rick Van Bruggen's opinion on why experts are "recession proof". While you're there - if you are based in the New York area, check out the schedule for the Gotham City Expert Witness Group.

What will happen to your practice if you have surgery? Dr. Jean Murray has some good tips for "Keeping Your Business Going After Surgery" at the Small Business Boomers blog.

And lastly, in keeping with my effort to stay on top of my "to-read" list, Scott Kirsner of the Boston Globe wrote an article on "Timely Tips to Empty Your Inbox".

Expert Witness Retainers

An expert emailed me a question about requiring fees up-front, scheduling and travel. I thought you might find our exchange interesting.

Expert's Question:

I charge a non-refundable deposit when an attorney gives me a trial date and asks me to commit to this. (I don't charge them until they ask me to make travel plans). I have been charging a full day fee since I often have to re-arrange my clinical schedule and even give up shifts to travel.

I recently had a trial that I was committed to go to be postponed and I hadn't received the deposit yet (I had worked with this firm before and trusted them).

How do other experts charge for this? Do most charge a fee before committing to travel? Non-refundable? How much?

I am wondering now if I should charge a scheduling fee, perhaps 50% of the required amount for a trial that is non-refundable. I want to be fair to the attorney since they can't control when a trial is postponed.

My Reply:

You should NOT empty your waiting room, re-arrange appointments, etc., to schedule deposition or courtroom time UNTIL you receive a check for the full,
estimated time. Then, if they postpone or cancel, you can refund money on a sliding scale (see Fee Schedule and related info in The Expert Witnessing Marketing Book) based on how easy/difficult it is and based on the date of postponement/cancellation, how easy is it is for you to restore your local work schedule.

I hear this over and over, and experts should not experience loss of income due to dates being moved by the courts and the attorneys.

What You Say and Do Will....

.... come back to haunt you. Attorney Robert Ambrogi has a great article "When What Happens Online Ends Up In Court" about ten cases in which various players in the courtroom - judges, lawyers, witnesses - found themselves in trouble due to their online activity. Some are pretty funny, but all of it serves as a reminder to be careful.

This Takes the Cake!

I've mentioned before about having contact information on promotional materials and easy to find on your websites. But now I must add -- include contact information in your directory listings and advertising! In glancing through a print directory of expert witnesses I came across a full page listing with lots of impressive information and NO contact information. No phone number, address, email address or website - NOTHING. I'm just dumbfounded.

Questions about Expert Witness Income

Have you ever been questioned by an attorney about your income as an expert witness? We recently emailed our newsletter subscribers an article about this. It struck a nerve and I have compiled the responses, which you can read here.

The most common advice seems to be to answer in percentages. How do you respond?

Do you commonly hear this question in deposition and/or trial?

Be Careful with Your Expert Witness Website

This is a caution about building and maintaining your expert witness website. As you know, everything you do, say, and write can and will be cussed and discussed and used against you. The added danger of the Internet as opposed to other venues is that once it's there, it's always there and it doesn't matter if you change it the very next day. Check out the Internet Archive and their Wayback Machine. Just type in your website address and you will see every incarnation of every page on your site since its inception and -- so can anyone else!

So what does this mean to you? If you are just building a website, don't just slap something up to have a website. If you have a website, be vigilant about who can add pages, update pages, etc., and proofread everything before putting it out there. Some things you just can't take back.

Expert Witness Deposition Video

Being from Texas, we are familiar with Frontier Justice. We just don't often expect to see it in current times, much less in an expert witness deposition.

Check out this excerpt of a deposition of an expert witness by the famous (infamous?) Houston attorney, Joe Jamail.

Mid-Year Review for Expert Witnesses

This is two-pronged post. First, a gentle reminder about staying on top of your marketing. Now is a good time to check your directory listings and advertising to make sure a) all your contact information is still current and listed correctly and b) that your description/key words accurately describe your practice. It's also a good time to analyze what's providing the best results.

On another front, attorney Robert Ambrogi recently wrote about 2009's Top Five Expert Rulings to date that includes decisions about improper exclusion and the right to confront an expert - decisions that could affect you.

Expert Witnesses and Retirement

Have you planned for retirement? Will you simply close up shop and end your practice? Are you considering selling your expert witness practice? Many experts have contemplated this issue. And it matters, even it seems years away, because your end goals could affect the practice management and marketing decisions you make today and in the years to come.


Here is what one expert emailed me on the subject:

"Question: In a year or two, I would like to retire but I don't know what to do about my clients and practice. I have been an expert witness for about 20 years and have built a good nationwide practice with a number of law firms that use my services over and over along with a constant flow of new clients. My web site has an "employment" section that implies a qualified associate has the potential of acquiring the practice in addition to making a respectable income. The employment section has been on the web site for 6 or 8 months but so far there has not been any interest."

What are your thoughts? I would love to hear your experiences and plans. Please leave your thoughts in the comments or email me at meredith@expertcommunications.com. Also contact me if you would be interested in writing a guest article on this topic or a related one for our newsletter, Expert News.

Help This Expert: Working with a Disability

I recently received a question from an expert about how to continue an expert witness practice when the expert has a disabling health condition. Here's the email I received:

"A colleague of mine is a self-employed expert witness. He works out of a home office in a fairly rural town, and is occasionally called upon to travel to a client's offices or meet with attorneys. Last winter he suffered a stroke, and now finds that he cannot leave his home without assistance, and some of the tasks associated with his work are much more time consuming than before. This has raised some significant challenges as his recovery progresses, and I suspect other expert witnesses have already navigated these decisions.

At what point should one disclose a handicap to potential clients? Should one bill differently for tasks that take longer than before? How can one minimize having to work outside the home? Should all self-employed people carry long-term disability insurance? What accomodations are reasonable for a handicapped person to expect when he must travel to a deposition? There are many other questions surrounding this issue, but thus far I have more questions than answers."

I suspect some of you have faced this issue already and we should probably all consider what we would do. Please give any words of wisdom or resources you know of to help this expert.