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.
Marriage And Divorce
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
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 Are Not Equal Either
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.
Do Right And Don't Write
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.