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."
IMS
Expert Services is the premier expert witness and litigation
consultant search firm in the legal industry. IMS Expert Services
is focused exclusively on providing custom expert witness search
services to attorneys. We are proud to be the choice of 91 of the
AmLaw Top 100. Call us at 877-838-8464 or visit us at www.ims-expertservices.com.
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