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| Lawyers As Expert Witnesses Attorneys
deploy expert witnesses much more frequently than they assume the
role themselves. But lawyers occasionally take on the mantle
of an expert witness in a variety of contexts.
The matters in which attorneys
may serve as experts range from conventional malpractice cases, testifying
for or against claimants suing attorneys, to challenging or validating
the reasonableness of a settlement under the Miller
v. Shugart doctrine, and a host of other subjects. Some of the subjects are mundane, some arise
relatively repetitively, and others hardly occur at all in the daily
pursuit of the practice of law. As one who has had increasing
experience as an expert witness, I thought I would pass on some tips
to those who may use lawyers as experts or become an expert witness
themselves. Some of the protocols for lawyer-experts are
similar to those for nonattorney experts, while others are more particular
to the status of attorneys in the legal process. Here are a half-dozen attributes
of the characteristics lawyers should keep in mind if they find themselves
called in as expert witnesses: Educator. Lawyers as experts should be more than passive
witnesses. Selected for their
experience in a particular field or on a specific issue, they can
be expected to educate the litigation team with which they are working. Rather than merely opining on the issues proposed
to them, they can perform a valuable function helping to educate the
lawyers with whom they are working.
They can offer strategic tips, whether solicited or not, to
assist in the presentation of the case.
They need not restrict their focus to their own testimony,
but can offer pointers on other matters, as well. While they ought
to avoid being officious, lawyer-experts can play a helpful role serving
as a de facto “second (or
third) chair” in cases in which they are deployed. Xenophobe
Avoidance. Attorney-experts,
like legal counsel, should resist the temptation to reflexively reject
the other side’s point of view or to become cheer leaders for the
causes with which they are associated.
Counsel working on the case may be permitted some leeway because
they need to encourage and instill confidence in their clients while
still maintaining an objective viewpoint. But attorneys serving as experts should avoid
an overly xenophobic outlook. They
can be more valuable by helping to point out some of the flaws in
their own side’s case or strengths that need to be rebutted from the
other side of the case. Prepared. Preparation, as most lawyers know, is a critical
factor in achieving success in litigation. Experts need to be as prepared, if not more
so, with respect to the particular issues about which they will be
testifying. Most will, of course,
be familiar with the major issues in the case, but they should be
wary of being tripped up by the minutiae that the other side may hurl
at them. A keen awareness of the record, including even
minor points that may be raised to undermine their credibility, is
imperative. Indeed, focusing
on some of the seemingly minor points may be particularly helpful
since the attorneys engaged in the case may be too close to the proverbial
forest to see the trees. Lawyer-experts should also be aware that, unlike
counsel of record, they are clothed with few, if any, privileges. Therefore, most of their work may be an open
book for cross-examination, discovery, or in an adversarial hearing. They should keep this in mind in their preparation,
recognizing that whatever they record or memorialize may be subject
to scrutiny by the other side. They
ought to avoid, where appropriate, inculpatory materials in their
records, while at the same time not having files that are so sparse
that they reflect paucity of analysis and other work. Enthusiastic. Experts should, of course, maintain a degree
of distance from the volatile, often emotional issues in the case. But they should approach their task with enthusiasm,
rather than embracing a laid-back style that borders on ennui. The client whose case they are supporting will
appreciate the expert who brings a measured degree of enthusiasm to
the task, and such an attitude will generally have a positive impact
on judges, juries or other finders of fact in law in a particular
matter. Reasonable. The rates charged by attorney-experts for their
work can be a ticklish item. In
some instances, particularly insurance defense matters, attorney-experts
may not want to charge too much lest their rates overshadow lower
rates charged by litigation counsel.
Attorney experts also should recognize that their rates will
probably be a subject of testimony at trial; rates that are too high
may seem outlandish. On the other hand, charging a rate at the higher
end of the spectrum of reasonableness can suggest that the experts
know what they are talking about and testimony will likely be heated. Whatever the rate, it should be established,
preferably in writing, at the outset of the undertaking. Bills should be sent out on a regular basis,
usually as prescribed by the hiring party or counsel, and final billing
should be rendered promptly upon completion of the expert’s work,
rather than lagging behind the conclusion of the case. Timely. Attorney experts should try, whenever feasible,
to conform their timing to that of the parties or lawyers who are
engaging their services. They
should try to accommodate scheduling requests for discovery, including
depositions and trial testimony, rather than expecting everyone else
to bend to their particular timing constraints.
Although important and sometimes crucial to success, attorney-experts
ought not over-emphasize their importance to the case.
They are, to be sure, not the
most important participants in the matter, and they ought not treat
the attorneys or others with whom they are working as subservient
to them. These tips are hardly exhaustive.
There are many more features that make an attorney a credible
and quality expert. But one
who takes on these six attributes — Educator,
Xenophobe Avoidance, Prepared, Enthusiastic, Reasonable,
and Timely — has the makings
of a high-performance EXPERT. c MARSHALL H. TANICK is an attorney with the law firm of Mansfield, Tanick & Cohen, P.A., in Minneapolis and St. Paul. He is certified as a Civil Trial Specialist by the Minnesota State Bar Association and frequently serves as an expert witness. |
