Serving as an expert witness on an important cases can be a thrilling achievement and validation of years of hard work. However, a turn as an expert witness can also be very intimidating for the uninitiated. Even though an attorney should prepare their expert as well as he or she can, it is still up to the expert to remain calm and composed during the stress of deposition and cross-examination on the stand. We spoke with fourteen experts who shared their advice for first-time expert witnesses. What did we find out? The key is preparation, integrity, and, unsurprisingly, years of relevant training and experience.
People always ask me how to become an expert witness. I answer, “First become an expert, then you can become an expert witness.”. In my case, I spent 30 years working in the fields of toxicology, carcinogenesis, pharmacology, and pharmacy before I began my consulting and expert witness practice. The most intimidating aspect of being an expert witness is being questioned for 4-to-16 hours in depositions or trials. However, to avoid being intimidated, I review the file and deposition transcripts of other experts in the case so that I am familiar with the kinds of questions I may be asked. My advice to experts is to be well prepared, respond with confidence and “never let them see you sweat.”
Harry A. Milman, Ph.D – ToxNetwork.com
If you are interested in becoming an expert witness, first know the difference between an expert witness and a consultant. A Legal Nurse Consultant might not be an expert witness, because he or she is only interested in reviewing medical records. Define yourself upfront. Do not waste thousands of dollars becoming certified at once. Make sure you are a nurse that is able to make a firm stand behind your opinions. It is tough being cross examined and you have to believe in your opinion, never waver. Be honest, do not be ambivalent, hold to your opinions. This work is educational – I teach nursing – this is secondary to my primary job. It is not a get rich quick game.
Michelle Myers Glower, MSN,RN,NEA-BC – MMG Nursing Consultant
Be honest on what you know and what your opinion is. To say or write something which is not correct or true will get you in trouble. Your expert report can be thrown out and your career as an expert is over. Lawyers may ask you to say something you don’t think is right. Many times the terms used by the lawyer does not match the industry terms in meaning. I explain the industry terms and identify alternative approach to make a point. If the lawyer insist this is what they want said, I decline the assignment.
There are two difficult aspects of being an expert witness. First is the personal attack by the opposing lawyer. One has to understand this is not personal, but their job. After one deposition the opposing lawyer came up to me and inquired if I could help him with one of his other cases, so it is not personal. Second is the report. The writing has to be tight and clear in meaning. Fudge words don’t work here. It is like writing a thesis. Just saying X or Y does not cut it unless you can back it up with facts or published sources.
W. Frank Dell, CMC – Dellmart & Company Management Consultants
To the person considering expert witness work: It is vital to be experienced and competent in one’s field of expertise, but that is not enough. A difficult aspect of being an expert is the unpredictability of each encounter with opposing counsel. The deposition might be welcoming, where opposing counsel is friendly and invites the expert to talk as much as possible. The deposition might also be highly confrontative, forcing the expert to defend every opinion in detail. A report may or may not be required, but the expert still needs to be well-prepared with defensible opinions. And in every trial, the expert will get beat up a bit on the stand. To survive as an expert, it is important to work closely with retaining counsel to prepare well in each case, and to treat each case as unique.
Chip Darius – Safety Priority
Anyone considering expert witness work must possess an unflagging dedication to the facts of the case, combined with elephant-thick skin. The most difficult aspect of being an expert is disappointing the retaining party with information that injures their position; yet fidelity to the truth is always the correct course–for “spin” is both unethical and inexpert.
You have to be prepared to make solid conclusions even when you don’t have all of the information. You’ll always want to know more than what is available to be absolutely sure, but you won’t get it. You have to follow the facts you are given to a likely logical conclusion and know that you did it to the best of your ability.
The most difficult or intimidating aspect of being an expert witness is knowing that there is a person just like you working the issue from the opposite perspective that will be there if you are wrong. I deal with this by continuing to ask myself, “Does this make sense?” and “is there any evidence contradict my conclusion”. If it makes sense, you have supporting evidence and facts with nothing contrary to what you saying, you are on solid ground and you’ve done the best you can do.
Mark Swanson – H&M Consulting Group
You have to have experience in your field. You must be a master of your craft & know every detail, you cannot call yourself an expert right out of training. How many years of experience is enough? Five, 15, 25? Only the hiring attorney can decide.
The most difficult aspect of being an expert is not knowing the legal maneuverings & ramifications. You know your field, but probably have no legal background or experience. The terminology, scheduling, delays, interacting with attorneys and paralegals from both sides, rules of testimony, answering legally worded questions, etc. can be intimidating to the uninitiated.
You deal with it by being prepared & learning. You have to get training in the legal arena by attending seminars, reading & researching on your own time while still working at your profession. It is akin to obtaining an advanced degree or studying online. You also deal with the difficult work of being an expert by not being intimidated! However, if you are honest, thoroughly reviewed the file & know your field – you do well!
One piece of advice: Don’t shortcut or take the easy way on either your career or your consulting work. Take the continuing education, get the credentials, get licensed, etc. In order to get a chance to work on higher level cases, you have to be the best.
One of the more difficult challenges for an expert witness is dealing with an attorney who refuses to accept an opinion that doesn’t fit his/her idea of what happened. It is important to do the work to reach a solid opinion, and once you do, stand firm, even with the attorney who hired you. In the end, that’s what we as expert witnesses owe both the client and the trier of fact. If the attorney will not accept that, you really don’t want to work with him.
Ciro Ramirez PhD, PE, CSHO – Thornhill, Ramirez & Associates
Be an advocate for the process and your opinion and not the litigant. Your analysis and interpretation of the facts and circumstances should be what drives your conclusion, not a targeted result for the client. The court system is a very small world and you (as an expert) are often in front of the same attorneys and judges. An expert must be consistent.
I am doing this for over 25 years, so I am not intimidated by the process. The most difficult aspect of being an expert is to coach and educate the attorney you are working with. Often, the attorneys are great legal minds but are uncomfortable with the financial components of the case. An expert’s job after preparing a report and conclusion is to educate the attorney as to why your results have worth. An experts ability to work with the lawyer provides the possibility for the best outcome.
Mark S. Gottlieb, CPA PC (MSG) – MSG Accountants, Consultants & Business Valuators
Stick to what you know. Do not venture outside of the field of expertise that you are truly trained and experienced in. Far too often, “experts” will claim to have expertise in everything, from slip and fall to fire causation to oil rig disaster to electrical design to…oh yeah we do traffic accidents too! Stick to your specialty field and know it well.
Deposition testimony is probably the most difficult aspect of being an expert witness, simply because far too many attorneys treat it as though it is an interrogation and there is no Judge present to maintain order. You learn to deal with it by becoming familiar with the rules that apply to the attorneys, such as the Rules of Professional Conduct that are set forth by the American Bar Association.
Each state has a Disciplinary Board that monitors attorney behavior and will conduct an investigation into misconduct based on a valid complaint. It is also important to become familiar with the Code of Civil Procedure applicable to your jurisdiction, particularly as it relates to the pre-trial discovery of an expert. Frequently, you will find that the “order” commanding your appearance or production of documents goes far beyond the scope provided within the law and is merely a bullying tactic or fishing expedition concocted by the opposing side. For instance, the Louisiana CCP excludes from discovery draft reports and correspondence that might contain the mental impressions of the attorney who has retained you. Forward all subpoenas immediately to the attorney who has retained you for his/her review and require that they handle the matter on your behalf.
Finally, be prepared. Review the file material and compile the information in a manner that will allow you to respond effectively during the deposition. When testifying, maintain your composure, be the professional that you are, and listen carefully to the questions. Take your time, answer truthfully and don’t be afraid to explain your answer in as much detail as you feel necessary. Don’t allow the attorney to cut you off, reword or misrepresent your testimony. Remember, as the witness you are sworn to tell the truth…not the attorney questioning you.
Mike Gillen – National Collision Technologies Inc.
Represent the truth and see yourself as an medical educator. For me, the most difficult part of being an expert is when the opposite side tries to discredit me as a witness. I have learned that this is a part of the opposition’s strategy and to not take it personally. I always enjoy educating the jury during the trial and that is what I focus on.
Dr. Rose Kumar M.D. – The Ommani Center
As an Expert Witness you must ensure you have it right no matter what the circumstances, people are looking to you to be accurate. Don’t provide blue sky…Stick to the facts and make sure you can support your data with overwhelming certainly. Remember, you’re the expert!
Being crossed….Sometimes an unpleasant experience as you’re the enemy…You’re the one there to prove the case and based on your expert testimony, someone will be unhappy or happy, and the unhappy folks will do whatever they can to ruin your day.
Bob Frimet, CAMS – RMF Consulting Group
Have passion for the case. If the expert is passionate about the client obtaining justice the relationship with the client team will be better and the expert will be more convincing when writing affidavits or submitting oral testimony during depositions or at trial.
The most difficult part of being an expert witness is preparing for the anticipated questions of opposing counsel, should the case progress to depositions or a trial. Nevertheless, the key is preparation. When the expert is prepared, he should be confident, which averts “intimidation.”
Mark Spivak – Comprehensive Pet Therapy, Inc.
You must have a complete knowledge of and work experience of the subject matter in which you are providing expert testimony. There should not be anything intimidating about providing “expert testimony” if you are truly knowledgeable about the subject matter. If one is testifying about something he/she has no knowledge or experience about, then that’s intimidating!
Richard Guerard –Guerard Consulting & Investigative Services