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 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.

Different Fees for Different Clients?

An expert witness recently emailed me this question: "Does it affect an expert's credibility to use different fee schedules with different clients?"

My immediate response was that all information is discoverable these days - anything you make public on the Internet, print and mail out (even to individuals), say, do, etc., - can and will be 'cussed and discussed' as my mother says, and used against you. I can't imagine a good answer when asked about it in deposition or court by opposing counsel.

What makes this particular question even more dangerous is that the expert was charging plaintiff attorneys at a different rate from defense attorneys. I actually cringed when I read his email.

Am I way off-base? Do you think this expert could be unwittingly inviting trouble or am I over-reacting?

Getting Paid for Your Work - Know the Local Statutes

As you may know, we have had an ongoing discussion about experts getting paid. How do you make sure you are paid? Should you require a retainer? If you aren't paid, should you sue the attorney? Can you refuse to hand over your expert report unless you are paid? Can you/should you require payment for services rendered prior to participating in a deposition or testifying in court?

In a recent email on this subject, an expert in California wrote, “I found out a few years ago that here in California, the attorney requesting the deposition is not required to pay the expert a week before or even an hour before!”

This was new to me, so I checked with Jim Robinson, an attorney in California and president of JurisPro Expert Witness Directory. He emailed me back with the applicable section from the California Code of Civil Procedure 2034.450, which says:

a) The party taking the deposition of an expert witness shall either accompany the service of the deposition notice with a tender of the expert's fee based on the anticipated length of the deposition, or tender that fee at the commencement of the deposition.

b) The expert's fee shall be delivered to the attorney for the party designating the expert.

c) If the deposition of the expert takes longer than anticipated, the party giving notice of the deposition shall pay the balance of the expert's fee within five days of receipt of an itemized statement from the expert.

The requirements for payment vary from state to state. As such, it is important for you to investigate and understand the applicable standards and laws in each state for which you might be called upon as an expert. It is also wise to double check any information you may hear from fellow experts, or even attorneys, regarding payment for your consulting and testimony.

Just as your CV,business cards and stationery, and website are key to establishing a successful expert practice, so are your engagement agreement, billing practices and collection policies. The more you know, the more you can do to protect your practice and successfully promote your expertise.

Protective Billing Practices for Expert Witnesses

One comment in response to my post about experts discounting their fees I think could be helpful to many of you.

"We have adopted policies to protect ourselves against being abused at the end of cases.

* Nonrefundable portion of retainer. Experiences where the mention of our being hired facilitated settlement and suggestions that we shouldn't earn a fee because we did no work caused this one.
* Apply the retainer to the last bill.
* Must be current at important milestones, e.g., prior to deposition or trial testimony or issuance of final reports.
* Regular billing. This not only avoids surprises, but starts the clock running on a/r.

Nothing new in the above, but simple things like staying on top of billing, and exercising leverage when one has it (prior to something happening that the lawyers want)."

Attorney to Attorney Advice Helpful to Expert Witnesses

A blog post by Rick Kuykendall at the Trial Lawyer Resource Center listed these five questions as the basics for conducting an expert deposition:

1. Who engaged you in this case?

2. What did they ask you to do?

3. What did you do?

4. What conclusions, opinions did you reach and what do you intend to testify to at trial?

5. Were there any other tests, analysis, or other things you could have done or would have liked to have done?

At a minimum, be prepared to answer these questions.

Don't Miss Out on Key Expert Practice Info

I have mentioned attorney blogs before as being full of valuable information for experts as well as another way to find out about and reach potential clients. Attorneys have blogs based on jurisdiction, subject matter, and numerous other niche topics. You can find the best ones for you through lists such as Blawg or taxonomies like 3L Epiphany , which can be a goldmine of information once you explore it a bit.

For example, medical experts of all types from around the United States should be following the legal proceedings regarding professional medical associations in relation to expert testimony. See the blog post by Rick Shapiro last week - "Lawyers Battle On For The Doctors Who Testify In The Courtroom".

Or, for insights helpful to experts of all kinds, you can find advice from attorneys to other attorneys regarding expert witnesses, such as the recent podcasts by Evan Schaeffer on "Advanced Deposition Techniques" or the Trial Lawyer Resource Center , a blog with posts from many trial lawyers addressing multiple issues and topics. Use the 'search site' tool to look for your key words; put in "expert witness" and get an attorney's view of the five most important questions to ask an expert witness at deposition.

One potential resource, which I must admit I was hesitant to even visit, could be YouTube . Various depositions and advice about depositions have been posted there in recent weeks. Try different searches such as "deposition", "expert witness", and terms specific to your practice.