ABA Report: Ten Ways That Attorneys Kill Their Own Experts

In mid-September, the American Bar Association Center for Continuing Legal Education sponsored a webinar entitled "Ten Ways That Attorneys Kill Their Own Experts". As many attorneys reading this post know, expert testimony is, quite often, an effective and vitally important piece of the evidence pie presented at trial. The webinar discussed experienced trial attorneys’ experiences with experts whose testimony produced negative results. Was this caused by poor selection? An expert’s lack of testimonial skill? Or, was it something that the lawyer had some or significant control over?

Recently, the ABA published a report on the webinar and the report lists the "Ten Ways" lawyers will, inadvertantly, destroy their own experts’ credibility. I thought that I would share the findings with my InjuryBoard brothers and sisters:

1. Short Notice Requests: The report says that being retained at the "last minute" is the most frequent way to hurt the quality of your expert. The expert does not have enough time to familiarize himself with the file and prepare.

2. Inadequate Budgets: Negotiating down to an unrealistic pre-set budget figure will effect quality. Keep in mind that the expert may have to marshall appropriate resources to deliver a qualified opinion and may not be able to effectively work within your pre-set budget. (Tip: Lawsuit Funding can assist you in providing needed funds to retain the right expert, see below).

3. Assumptions Without Evidence: Lawyers will sometimes compel their experts to make assumptions that are not supported by evidence. Unsupported hypotheticals can be shot down by capable defense counsel.

4. Bias: Do not expose your expert to inside influences that might create a bias. For example, if your expert speaks to your client, discusses things unrelated to testimony, and begins to feel sorry for him/her, it may infuence testimony.

5. Ignoring Experts’ Input: Don’t be arrogant. Listen to your expert; don’t jam your feelings down the expert’s throat without soliciting the expert’s opinion or input.

6. Discovery Procees Mistakes: Don’t allow the discovery cutoff date to pass without first finding out what the expert needs to formulate a professional opinion. Discovery is key to successful expert testimony; include your experts in the process and obtain their input.

7. Experts Outside Their Comfort Zone: Do not ask an expert witness to testify about issues outside the scope of their expertise. This will, absolutely, hurt the credibility of your case. Do not solicit testimony outside of their professional credentials.

8. Accepting a Stipulation to an Expert’s Credentials: Let the jury hear what a genius he/she is.

9. Provide the Expert With All of the Evidence: Not a distilled version of it, this will come back to haunt you on cross-exam.

10. Timing Your Examination: Do not, under any circumstances, permit direct exam on Friday and cross-exam on Monday. Bad planning will give your opponent the entire weekend to prepare for cross-exam and discover ways to undermine direct testimony.

Most lawsuit funding companies provide litigation cost funding. A temporary cash flow issue should never prevent you from retaining the appropriate expert you want or need for your client’s case. Typically, strategic lawsuit funding will pay for the expert you need; the funding company will await repayment out of settlement proceeds received at the end of the case. I do not recommend indiscriminate use of such a service, but it is comforting to know that funding is available if it essential to retain the expert of your choice.