Six Things You Should Know About Using an Expert Witness
Expert witnesses are used in nearly every complex, high-stakes legal case, from financial litigation to medical malpractice. It’s common for law firms to have a stable of expert witnesses they like and use regularly. “We have a number of lists of good people we have used before,” says Braden Perry, partner at Kansas City-based law firm Kennyhertz Perry LLC. Perry is in the unique position being both an experienced lawyer and an expert witness who has worked on securities and cryptocurrency cases.
Bringing an expert witness onto your case can have its risks. We talked with both Perry and Matthew Hoffman, the managing partner of RoundTable Financial Group in New Canaan, Connecticut, who is currently acting as an expert witness on his 13th case, to find out what lessons they’ve learned throughout their time working with and acting as expert witnesses.
The amount of work required for an expert witness depends on the case.
While the substance of the work that expert witnesses do is fairly standard, including reviewing evidence, writing an expert report, being deposed, and potentially testifying in court, the amount of time these tasks require varies widely by case. The key is sufficient conversation before hiring the expert witness. “You need to understand the scope of work and how they are going to do it,” says Perry.
You must anticipate billing surprises.
Once you’ve agreed on the scope of work, it’s important to put in writing what the expert witness will charge for their services. “Eliminate any surprises with an engagement letter and a cost sheet, which will identify any hidden fees,” says Perry. His firm’s cost sheets include line items, such as travel fees and separate billing rates for research and testimony.
Hoffman, who “tends to put in a lot of time and effort up front,” has learned through the years that it’s best to charge more for his first 20 hours of work. “It works out because I get paid more if a settlement comes in early or if they just need my opinions,” he says. “And if the case goes on longer, the law firm gets a bit of a break.”
Perry says it is also important to ensure your client is aware of how much the engagement is likely to cost. “Spending $35,000 is nothing with litigation, but your client may think otherwise,” he says.
Preparation and transparency are crucial.
The worst thing that can happen in court is for an expert witness to get stumped while being questioned —usually by opposing counsel— but occasionally by the lawyer with which they are working. Hoffman has had the latter happen to him. “My lawyers asked me a question and I could not understand what they were asking,” he says. “They were not clear and they gave me no indication as to what direction they were going. I had to ask them twice to ask the question in another way. The judge even said that he didn’t understand what the lawyer was asking me.”
“I don’t typically get flustered,” Hoffman recalled. “I have a calm and tempered personality, but I was laughing internally.”
It can be even worse when the opposing counsel reveals something important to the expert witness that they weren’t told by their lawyers. Hoffman has experienced this as well.
“The opposing law firm made a statement, and then asked if I was aware of this,” he says. “It was a significant event that had not been disclosed to me, so I was caught off guard. It was material enough that I looked at my lawyer and then looked back at the opposing counsel and said, ‘Is that really true?’”
Naturally, this sort of worst-case scenario does not come along frequently and it can easily be avoided. “It’s extremely important that litigators reveal all the good and all of the bad to their expert witnesses,” says Perry.
The opposing counsel will try to discredit your expert witness.
Opposing counsel often digs deep in their research, sometimes surprising even experienced witnesses like Hoffman. “One time the law firm even found or created an article about a Matthew Hoffman that wasn’t me,” he says. “They were trying to discredit me during the qualifying segment before trial. It was a strange accusation that was completely false.”
Sometimes the research works in your favor. Hoffman has had cases that settle immediately once opposing counsel finds out that he’s the expert witness. He’s held senior management positions in asset management and trading at Credit Suisse, UBS, Merrill Lynch and JPMorgan Chase.
Being questioned on the witness stand is challenging.
Opposing counsel will attack expert witnesses with everything they have, so witnesses must be experienced, knowledgeable, and able to stand up to tough questions. “I’ve been up against experts who are inexperienced in what they are talking about or have no expertise in the marketplace,” says Hoffman. Those kinds of expert witnesses can fall apart under pressure.
The best experts are calm, articulate, and experienced in every aspect of their area of expertise. “You [need] a calm enough personality and [the ability to] stand up for your convictions and what is right,” says Hoffman. “You’ll last as an expert witness if you do.”
An expert witness can change their opinion mid-trial.
It doesn’t happen often, but a flip-flopping expert witness is a lawyer’s worst nightmare. “It hasn’t happened to me, but in a case I was involved with, a witness changed their opinion in deposition after tough questioning,” says Perry. “If that happens, you’re eliminating any hope for the side who was using them.”
In that case, Perry says, the case was settled, which is a common outcome if an expert changes their opinion. “If an expert witness goes with the opposing viewpoint, they are on the record, so you are at the mercy of settling or finding another expert,” says Perry.
In the end, the key to a successful expert witness engagement is making sure you pick the right person for the job, and then clearly and unambiguously laying out your expectations of them from the very start, both verbally and in writing. “Use an expert you trust and is experienced,” advises Perry, “and most surprises will go away with initial conversations and an engagement letter.”
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