10 Way to Kill Your Own Expert

The fol­low­ing arti­cle was orig­i­nally posted in the American Bar Association October Newsletter. There is a LOT of truth to these points:

Ten ways lawyers kill their own experts

Businessman chop­ping down another busi­ness­man.  Expert wit­nesses can make or break a case, but many lawyers inad­ver­tently destroy their experts’ cred­i­bil­ity. In the tele­con­fer­ence “Ten Ways That Attorneys Kill Their Own Experts,” pan­elists dis­cussed com­mon bad habits of lawyers that derail their experts and the ways to avoid them.

Short notice requests: The most fre­quent way lawyers hurt the qual­ity of their experts’ tes­ti­mony is find­ing their experts at the last minute. Many of these experts say they cringe when they get a call from a lawyer need­ing to des­ig­nate an expert within a cou­ple of hours. A short time span does not allow enough time for experts to famil­iar­ize them­selves with the evi­dence and pre­pare for their deposition.

Inadequate bud­gets: Many lawyers set aside only a small bud­get for experts or agree with their clients to set a flat retainer fee. That may not be enough money for experts to get the appro­pri­ate resources they need to for­mu­late opin­ions that with­stand the opposition’s cross-examination. Be real­is­tic about costs and don’t nego­ti­ate down to a client’s bud­get, if it will hurt the qual­ity of an expert’s testimony.

Assumptions with­out evi­dence: It is com­mon for lawyers to sug­gest that their experts incor­po­rate cer­tain assump­tions when for­mu­lat­ing their opin­ions, but evi­dence must sup­port these assump­tions. Unreasonable assump­tions lead experts to deliver unsup­port­able hypo­thet­i­cals that smart oppos­ing coun­sel will shoot down quickly.

Introducing bias: Many lawyers expose their experts to toxic influ­ences that may bias them—a big mis­take. For instance, in divorce cases, lawyers should ensure their experts and clients do not speak with one another as their inter­ac­tion could result in sym­pa­thetic experts who sub­con­sciously inte­grate bias in their testimony.

Ignoring experts’ input: Preparing expert wit­ness des­ig­na­tions with­out solic­it­ing the experts’ input is another mis­take. It can be a fatal blow to wit­ness tes­ti­mony if the scope of the des­ig­na­tion is nar­rower than the expert’s testimony—a judge may rule to exclude it upon request of the oppos­ing counsel.

Discovery process mis­takes: Many lawyers allow the dis­cov­ery cut­off date to pass with­out first obtain­ing their experts’ wish list. Experts need cer­tain doc­u­ments to for­mu­late pro­fes­sional opinions—therefore lawyers must ensure they include their experts in the dis­cov­ery process in order to build solid testimony.

Experts out­side their com­fort zone: Asking wit­nesses to tes­tify about issues out­side the scope of their exper­tise is another no-no. Lawyers must remem­ber that their oppo­si­tion is try­ing to hurt the cred­i­bil­ity of their case, so they should make sure their experts can ver­ify their tes­ti­mony through their pro­fes­sional knowl­edge of the sit­u­a­tion at hand and their pro­fes­sional credentials.

Other ways in which lawyers set their experts up for fail­ure: pro­vid­ing an expert with a dis­til­la­tion of the evi­dence; accept­ing a stip­u­la­tion to an expert’s qual­i­fi­ca­tions; and allow­ing for direct exam­i­na­tion on Friday and cross-examination on Monday. Allowing the oppos­ing coun­sel an entire week­end to pre­pare for the expert’s cross-examination is just bad plan­ning and gives the oppo­nents an advan­tage in find­ing loop­holes in the case.