How to be a Better Expert Witness

    If you are reading this blog, chances are that you are: (1) An attorney looking for an expert witness, or (2) someone who is or wants to be an expert witness. If you are the latter, please accept the following as my humbly presented ideas on how you can maximize your utility as an expert witness, particularly related to communication.

    Be Communicative

    I understand that, as an expert, you are likely very busy – but so are the attorneys hiring you. One of the fastest ways to lose out on the opportunity for repeat work is to make it difficult to reach you.

    The most common form of this problem comes in the form of unanswered emails, and sometimes voicemails. No reasonable attorney expects an immediate reply to their email under normal circumstances. However, if it takes multiple tries to get a response, then there might be a problem. My firm has a 24-hour rule – All emails from clients must be answered in 24 hours, even if just to acknowledge receipt. That is a little extreme for an expert witness, but shows how important prompt and attentive communication is for attorneys.

    Because email communication between counsel and expert witnesses is ultimately discoverable in many jurisdictions, few attorneys are asking for lengthy responses to their emails. Most of the time they are asking when the expert is available for a conference call, for a deposition, etc. Even if all you do is respond to acknowledge receipt and set a timeline for a substantive response that’s great. Then the attorney has a set deadline to follow-up on.

    Communicate Humanely

    The best expert witnesses are those that than distill complex information into digestible bite-size chunks. Very few jurors have even a minimal understanding of the dynamics of a change in velocity (Δv) analysis. If you are trying to use such a calculation to measure the severity of a motor vehicle collision, you had better be able to explain it in concise and understandable language. Juror No. 5 hated math class, but not as much as he hated being picked for the jury. Trying to seem smarter via a bunch of “ten cent words” is a complete bar to you reaching that juror.

    Use analogies. If a part of the human anatomy is shaped like something most folks interact with, why not rely on that common knowledge? The human bowel is shaped similarly to a garden hose. Rather than “serosa,” maybe highlight the injury to the “outermost skin of the hose.” Be human(e).

    Be Kind

    This typically comes up in two ways: (1) When dealing with the attorney’s staff, and (2) On cross examination.

    Regarding the former, at least some of the time an expert will communicate with a young associate, paralegal or administrative assistant. Treat them just as if they were the lead national trial counsel. Those people are there to make trial counsel’s life easier. If you would like the main trial attorney to continue to hire you, it helps if his or her support staff enjoys working with you.

    As for cross-examination, my dad used to always say that when a person gets mad their brain turns off. Poking the opposing expert with a stick on cross examination to get them riled up is the oldest trick in the book. If opposing counsel is being insulting or overly aggressive, employing a “mirror image” technique, and remaining respectful and calm, can be very effective. Refusing to reciprocate an insult makes an expert look rational, not uncertain. In contrast, if you try to get your face as red as that of the overweight and overconfident attorney cross-examining you, they have already won.

    Proving your point does not require shaming someone with an opposing belief. If the opposing expert’s opinion is based on a mistake of simple arithmetic, explain how the mistake is fatal to the opposing theme without disparaging the mistaken expert. Their math is wrong, not the entirety of their being.

    Whether you are seeking to serve as an expert witness to generate income, because you need the ego boost or out of sheer benevolence, you cannot do so without someone first hiring you. If you want to boost your chances of getting hired (or hired again), employing some simple communication skills will go a long way.