Lessons for expert witnesses and the attorneys who hire them

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So you’re considering forensic work — or you’re a lawyer who needs an expert in a case? After working as an expert witness, first as a materials science expert and later a warnings and instructions expert, I wish I knew early in my career what I have learned during the past 40 years in about 1,000 cases.

Below are my thoughts on expert witness practice, if you will, for prospective experts and attorneys, too. I’ve drawn upon my experiences from working with some very good attorneys and some, not so good.

1) First Impressions Count

After agreeing to evaluate a case and receiving file materials to render an opinion, I sometimes take a step back and ask myself why all lawyers don’t send materials that are well put together and contain the requested file material. Because I have received excellent, well-organized files over the years, I am very disappointed when a box of material arrives in a haphazard fashion. This is the first sign of trouble that might be lurking if a better file is not received.

2) Understand the Assignment

I sometimes don’t know exactly whom the parties in the case are that the client is focusing on. Too often, I have been led to believe that my assignment was to evaluate a particular party, only to be asked (often at the last minute) to focus on another named party as well.

Unfortunately there is almost always a time constraint because of this, which now brings up the need to look deep in yourself to be sure you can do this and not compromise your ethics.

3) Take the High Road

The high ethical standards of good lawyers, in my experience, are often directly related to their organizational skills, the clarity of the assignment, the timeliness of returning telephone calls, e-mails and faxes, and their ability to challenge you to render honest opinions in a way that is consistent with your own honesty and their strategy of winning the case.

Unfortunately, as in all professions, including university and college faculty, there will come a time that an ethical crisis arises. I can name many such situations.

One scenario in particular, that has been more prevalent than others, has to do with what an attorney might do with your file before a deposition. As incredible as it seems, and there are many other examples, one attorney told me before my deposition to put my notes in my briefcase and not produce them. More incredible was his instruction to me to say I have no notes, if the question should arise during the deposition. When this happened, I told him I would do what he said, except that if the subject of notes were to come up, I would testify that they are in my briefcase, and if asked why, I will say my attorney said to do that, and furthermore, to say I have no notes. Not a pleasant experience, but one an expert is bound to face.

4) Preparing the Witness — or Not

Since almost all product liability cases are settled (some estimates as high as 95 percent or more), the deposition in jurisdictions that require them is the most common manner for experts to give testimony. When I am to be deposed, I have learned that a “pre-deposition” immediately before or shortly before the real deposition, can be detrimental to doing an effective job during the deposition. And as hard as I try, I am not clever or smart enough to prevent this from happening. But I still try.

Why is this detrimental? Because it is hard to predict how long the deposition will last and you don’t want to be tired beforehand. More importantly, I have been given new material to review, which I could and should have had earlier, and it sometimes confuses me and often results in an adversarial position with the attorney if I feel it will not help the case and other considerations.

5) Keep in Touch

Finally, don’t let too much time go by since the last time you heard from the attorney.

There are a number of reasons for this. For starters, the case may have been settled and no one notified you. It will verify for you that the case is still active.

More importantly, I have — painfully — been requested to do something, such as write a report, or help with the expert disclosure, in a timeframe that is burdensome to me because I failed the “do as I say, not as I do” suggestion. Keeping in touch in a timely fashion can avoid many problems.

Finally, when you are first contacted, ask about time constraints. Often a scheduling order is available that will give you this information.

Richard A. Moll is a professor emeritus with the College of Engineering of the University of Wisconsin in Madison, as well as a consultant, expert witness, and frequent speaker on products liability and warnings. He can be reached at [email protected].