The words expert and witness are often joined together, as if the purpose
of the expert is to be a witness at a trial. But most cases are settled
without trial, so why do they call us witnesses? Here is a two-part
chronology of the stages of expert-attorney relationship which explains
some of what is really happening (or not).
Getting To Know You (And The Technology)
Typically, the expert receives a phone call from an
attorney or a search firm like IMS ExpertServices™, describing
the case in general terms. During that call the attorney usually asks if the
expert has any conflicts of interest and is interested in serving. If
the first reaction is favorable, there will be a discussion of fees, the expert
will complete a confidentiality agreement and eventually be sent a box of documents.
Somewhere around here, the client/litigant
is contacted to approve the engagement of the expert. This can be
early on, after the expert's information is submitted, and in some
cases with known experts, even before that. More often, the client’s
attorneys (who may not know the expert even though he is well-known
to technical people) will review the credentials, compare them
with other candidates, and make their selection.
It’s even possible that a litigant will engage
an expert superficially, just to keep him from working for the opposing side.
It’s
not common, but hard to avoid. Some experts are so prominent in their
fields, or just so financially aggressive, that they can ask for a minimum
retainer, e.g., one day/month to be paid whether that day is used or not.
That may filter out the blockers from the well-meaning clients, but
there’s
no guarantee. Also, if the expert knows the players in his field, he
may deliberately refuse to work for one side in the hope that he can be engaged
to work for the other, whom he may think is in the right, or whom he may know
better. I’ve never seen a specific code of ethics for the
expert-attorney relationship, but it may exist somewhere.
At some point, the expert will realize that he
is an important factor in the case. Some jurisdictions require that
expert names be disclosed, which is a sort of commitment, although
divorce is rather easy. Other areas do not require names until reports
are filed, so an expert can remain in the shadows, reading documents
and doing other relevant research until needed or dropped. A lawyer
may drop an expert because he doesn’t like what the expert may say,
because a better one is located, or because the client has run out
of money. There
is no commitment until the expert is declared, and even then it may
be possible to proceed without the expert testimony, although the
opposition can still chase him down.
All attorneys are not equal; a few are intensely
interested in learning as much of the technology as they can, while others
say "that's what you're here for, just tell me the conclusions that
you can support.” Most are somewhere in between, usually Very
Busy, so they may want to know more but not have time to learn. That's
where an expert can help by digesting the case as much as possible,
and writing (and talking) clearly and simply.
All experts aren’t equal either. Some
are professional experts with expert witness work as their primary
business activity. This makes me suspicious of how much they
really know – I
was once opposing such a man who had never even seen a machine in
operation of the type he was alleging was dangerous. However,
if their frequent service comes after a lifetime of practical work,
as with many retirees, that’s another story.
Some experts see themselves as detectives, pro-active
outside observers who can see things or find them out that might help the attorney
in the case. In the pre-Internet days, my residence in Washington, DC
gave me easy access to Patent files; Library of Congress stacks of old trade
journals, DOT records of safety violations, and other such useful proximities.
Other experts are more narrowly constructed, and see
their job as reading what’s sent to them, often without even taking notes
on what they read, and then telling the attorney what they think of the case. This
type is cheaper, but the pro-active detectives can be very valuable, too, especially
for those Very Busy lawyers who don’t have time to look everything up. Today,
with the Internet, there is an unbelievable amount of information out there,
and a knowledgeable expert can be a great asset above and beyond his testimony
and opinions.
Since the expert’s work involves money, there
should be a good understanding of how much he/she will go beyond the documentation
to get information to help in the case. Rarely, an expert (who may already
be known to the client or attorneys) is given a blank check – “do
what you think is necessary and send us a monthly bill. If we don’t
like it, we’ll pay it but will let you know what we expect in the future.”
Some lawyers are either extremely cost-conscious or
don’t want to be smothered with reports and maybe contradictory opinions,
and will tell the expert to read things quickly, or just skim over them. I
am uneasy with such instructions, as although I read very fast, I expect that
I’ll have to remember things from these readings. I don’t know
what’s coming up on the later pages, and I’m driven to take notes. I
have a code system for identifying quotes and distinguishing them from my own
opinions. These notes are my guides if and when I have to make an expert
report, or prepare for my own deposition.
In my experience, anything the expert sends to
the attorney or keeps for himself is discoverable, so the expert has a problem. He
can take no notes while reading documents and just trust his memory, or he
can take notes always aware that he might have to produce them, or he can take
more personal (opinionated) notes. Attorneys may discourage all note-taking
because they are afraid it will give an eventual deposing attorney more avenues
to catch and even discredit the expert. They are often the same attorneys
who don’t send return emails, and prefer to talk it over on the phone,
yet are usually unavailable on that phone. Ask for the attorney’s
cell or Blackberry number for greater availability.
There is an additional advantage to expert’s
notes, beyond the use for later reports and testimony. If the notes
are descriptive, especially of a deposition, they are merely condensations
of what is already on the record, harmless to produce, but their
production may occupy the opposing attorney’s time and distract him/her
from more probing and more dangerous questions. Scribbling on the
document itself is very good for this. No one likes to admit it,
but lawyers have homes and families too, and everyone has schedules which
may involve air travel, so deposition lengths are usually pre-determined,
and the more an expert can “waste” his
opponents’ time, the less time they have to attack.
Should we take notes during meetings or phone conversations
with attorneys? To me, the answer is a guarded yes – write as concisely
as possible, but enough to refresh our memory when needed. And use email
as much as possible for items of procedure – meeting dates, sending of
more documents, even payments (which will be discovered anyway). Unless
it’s a momentous case, they are not going to subpoena your computer.
Of course, the expert can always leave the notes at
home, or lose them, or even use a foreign language or symbols only
he/she can understand, to obfuscate (good word for you attorneys, no?)
the meanings. We
don’t talk about this either, but it’s part of the real world. A
deposition is a competitive sport, like tennis or boxing (or politics). Keep
your cool, annoy your opponent, and you have a better chance of winning.
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