Don't Keep Your Expert in the Dark

by Robert Ambrogi - Editor
BullsEye Newsletter: November 2005

The most important conversation you have with your expert witness may be the first. Leave key questions unanswered up front and they may come back to haunt you later.

The initial conversation is the lawyer's opportunity to lay out precisely what he or she expects of the expert – and to determine what the expert expects in return.

"One of the things I find most helpful as an expert witness is to discuss all of the parameters in the initial conversation," says Laura J. Borrelli, an expert in residential mortgage lending. "Lay out the guidelines so that everyone is comfortable and knows the rules."

Borrelli's advice comes with the benefit of hindsight. In one of her first cases testifying as an expert witness, she was three-quarters through finishing her report before the lawyer revealed that his vision of the case differed drastically from what she had written.

Fast forward to today, and Borrelli, having now testified in more than 40 trials, has come to believe that it is in the best interests of both the lawyer and the expert to review as many details as possible as early as possible. Among key items she says to discuss:

Theme of the case. As an expert, Borrelli finds it helpful to understand the lawyer's view of a case's principal theme. Discussing this up front avoids misunderstandings later, when time is tight.
Timing and schedule. Borrelli is amazed at how often she hears from lawyers on a Friday afternoon who need something Monday morning. "I've had calls come at 8 on a Friday evening." Let the expert know what to expect as far in advance as possible.
Documentation. Lawyers and firms differ in their procedures for documenting conversations and other matters involving the expert. The lawyer should be clear with the expert regarding his or her expectations.
Communication. Some lawyers want everything by e-mail, others will accept nothing by e-mail. Be sure the expert knows your preferences for conveying messages and transmitting documents.
Local rules and customs. Having testified in venues throughout the United States, Borrelli understands that each locale has its own rules and customs, some dictated by the court, others by local practice. The lawyer should make sure the expert understands what the locale requires and expects.
Format. Every firm has its own preferences for the format of an expert's report, right down to line spacing and margins. Review your preferences with the expert up front and save time and expense later on.
Scope of discovery. Make sure the expert understands the scope of discovery for depositions and at trial.
Personal preferences. How do you expect the expert to work with you?
Billing. Some lawyers prefer highly detailed invoices, others prefer no detail at all. Spell this out for the expert.

Like any relationship, a lawyer's with an expert is a two-way street. This suggests that the initial conversation should flow both ways, Borrelli believes. Not only should the lawyer convey his or her preferences, but the lawyer should also explore any expectations or requirements the expert may have.

For Borrelli, the key to a successful lawyer/expert relationship boils down in one word: communication.

"I have worked with attorneys who are so well organized they keep you abreast of exactly what is happening," she says. But she has also worked with attorneys who seem to favor the element of surprise.

Of course, maintaining communication is important throughout the case, in particular in preparing for depositions and trial, Borrelli says. "This is mandatory in my mind. Most firms I've worked with will spend time with you in advance and play devil's advocate."

She does the same for them, putting herself in the shoes of the other side and helping the lawyer anticipate an opponent's contentions.

But for an expert who works with many different lawyers, each with his or her own unique preferences and expectations, the initial conversation sets the stage for the rest of the case.

Borrelli has a phrase to describe the lawyers who are well organized and effective communicators. She calls it "outrageous professionalism."

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