Dancing Monkeys and Free Snowcones

When helping experts market their practices, we don't expect them to know everything about marketing and especially marketing with a website; that's why we're here and what we do.  However....

We have a folder called the "Expert Witness Marketing Hall of Shame" for situations we just never anticipated encountering with experts, things we never thought we would have to explain.  Now, while every particle of my being would love to show you some of these websites, I can't bring myself to do it.  But I will share some of the top nominees for the "Hall of Shame."  Take these as a caution of what not to do, or a validation that your website isn't so bad after all.

The dancing monkeys.  Seriously.  On the home page, dancing over and through the text are dancing monkeys. Let's ignore the animation challenges and skip to the courtroom.  If by some chance an attorney actually retained the services of this expert, can you you imagine the fun opposing counsel would have with this on the stand?

This next one is just inexcusable.  On the CV posted on his website, in addition to the expert's own birthdate AND social security number, were the birthdates of the his children!  How do you begin to explain why this is wrong on so many levels?

And what I currently consider the leading contender has to be the free snowcones.  If you call for a free! consultation, you will also receive a coupon for a free! snowcone at the local fair.  I.kid.you.not.

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.

--------------------------------

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

--------------------------------

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.

--------------------------------

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.

----------------------------

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

---------------------------

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.

--------------------------

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.

-------------------------

"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.

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?

Dealing With the Opposing Expert Witness

We recently received an email from a reader of our newsletter, Expert News, about a problem the expert experienced with an opposing expert. With permission, I am reprinting it below and hope that you may have some advice for this expert witness.

There may be nothing one can do when an opposing expert egregiously inflates or fabricates their credentials and one's own client attorney fails to use evidence to prove it, but what about when that expert also tells lies about you?

I've had this experience in two recent cases, where the other expert stated on the record to both juries that I have a vendetta against her and that I had contacted "literally hundreds of people" and "fabricated stories about her," neither of which is true.

The truth is, several years ago at the request of my client attorney I checked on some items that appeared on this other expert's CV. I contacted about a dozen (not hundreds!) of the references on the CV. At no time did I fabricate anything, but simply asked whether they could verify the references, including claims of advanced degrees from a major university and claims to train government agencies in our particular field. For every item I obtained a letter from the reference stating that the claim was incorrect or untrue. In addition, I later obtained a transcript of this person's voir dire in the case I was involved in, where some of these claims were made.

Last fall, I once again opposed this person. I supplied my client attorney with the letters and transcript and he used the evidence. Our client won the case. The attorney talked about filing perjury charges against the expert, but that never happened.

In a more recent case opposing the same expert, she made some of the same claims, but this attorney client did not use the information he had to refute what she said, leaving the jury with the impression that she did indeed have the stellar background that she claimed. In addition, the expert told the same tale about me supposedly having a vendetta and that I had contacted hundreds of clients and fabricated stories about her. My client attorney allowed those statements to stand without questioning them. I thought he was saving the questions for my testimony.

However, when I took the stand, not only did my client attorney not give me any opportunity to respond to those false statement about me (which did make it look as though I had a vendetta), he barely allowed me to state my own credentials, and my exhibits were not allowed in--I still don't know why. So I was forced to explain my opinion without the important demonstrative exhibits that I had spent a lot of time preparing. Our client lost this case.

My problem is not that our client lost, but that he lost based on misrepresentations. When an expert inflates their credentials, there is no longer a level playing field. When the jury hears an expert say all these wonderful things that they have supposedly done, it gives their testimony greater weight. Untruths about the opposing expert make it far worse.

This person's untrue statements about me have affected my reputation and credibility. How do I know? Because the jury foreman stated that the jury found the other expert "more credible." Given the facts as stated above, I can understand why they would get this impression.

So, I wondered whether this type of situation is a common problem and what other experts do about it.

Please share any words of wisdom or similar experiences in the comments. (You can post anonymously).

Marketing Doesn't Have to Hurt

I frequently talk to experts who initially believe that experts shouldn't market. But as our conversation continues, it becomes clear that the foundation of that belief is a misunderstanding of what "marketing" is for professional service providers.

Marketing your expert services does not mean following some rigid set of defined steps and cookie-cutter actions. Some experts advertise, some don't. Many experts send out announcement postcards, while others mail newsletters, and still others (to their detriment) don't make use of their contact list in any way.

Your most successful marketing actions will be the ones that play on your strengths. If you are comfortable speaking to groups, look into CLE opportunities where you could speak on your area of expertise for attorneys who work on cases that involve those issues. Offer to make a a presentation for a section of your local bar association.

If you are more comfortable writing, then write articles about your subject. They don't have to be published in a legal publication. In our “Google” style world, an article published almost anywhere (academic journal, association publication, online newsletter, etc.) can increase your exposure and enhance your credibility.

Sum and substance - focus on what you are good at and comfortable with, and marketing your expertise becomes much less onerous and, dare I say it, even enjoyable.

Note: Rosalie would have my head if I didn't remind you that everything you say, write and do can and will be cussed and discussed and used against you by opposing counsel.

Expert to Expert Advice Request

As I have said before, so many experts express frustration about encountering situations in the legal industry that they have no experience with in their own field and thus no guidelines. You, our readers, have been very generous in sharing your experiences and best practices with other experts, so on behalf of an expert who contacted me last week, I ask for your assistance.

Here is the question:

“If an expert talks to one side in a case and, having heard some details about the case and perhaps done a bit of research, decides that in fact she cannot support that side's position...but she could support the opposition's side...is it unethical or otherwise looked ill-upon if that expert then accepts work for the opposing counsel on the very same (or other similar) case?”

Attorney Refuses to Pay Expert for Deposition

Payment for expert consultants to the legal community is an ongoing issue (and one we addressed in "Expert Pay Discussion"). Here is the most recent story I've heard:

Hi Meredith
I have a question for your readers: Prior to giving a deposition I always ask for a payment to cover my time and expenses, refunding any extra amount. I recently had a problem with a client who balked at this and said he would "personally" insure I was paid on time.

Well that was January and still no payment -- a few weeks ago they (the deposing attorneys) claimed never to have received the invoice -- an old scam I've run into many times in my consulting career. My question is, if I don't receive the up front payment, do I have the right to refuse to appear at the deposition, especially if I've been subpoenaed to appear?

The subpoena in this situation complicates matters in my mind. Any advice from the trenches?

Potential Dangers of Expert Blogging

In a recent blog post of his own, UCLA law Professor Stephen Bainbridge illustrates some potential dangers for academics and participants in the legal community who blog. Although written in response to the firing of a blogger by the John Edwards campaign, Professor Bainbridge points out:

...you're bound to say something that offends somebody. And then it'll be out there forever. Judicial nomination? Political appointment? lateral hire at a "better" law school? Expert witness deposition? Congressional hearing? Forget about it.

I've commented before about the potential for blogs to be especially dangerous for expert witnesses as providing fodder for opposing counsel. If you choose to blog, or for that matter, post anything to the Internet, I remind you of Rosalie's advice to experts in The Expert Witness Marketing Book:

All of your writing and speaking is discovereable 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.