In this episode…

According to Mr. Kevin Hensley, attorneys prefer great communicators, not just a wealth of expertise. No matter how well-versed an expert witness is in their field, an expert’s ability to convey that knowledge effectively and efficiently to the factfinder is paramount. He uses initial phone calls to vet experts’ ability to communicate.

Check out the entire episode for our discussion on experts that go above and beyond, keeping your cool, and preparation.

Note: Transcript has been lightly edited for clarity.

Host: Noah Bolmer, Round Table Group

Guest: Kevin Hensley, Partner at Barton Gilman

Noah Bolmer: Welcome to Engaging Experts. I’m your host, Noah Bolmer, and I’m excited to welcome Kevin Hensley to the show. Mr. Hensley is a partner at Barton Gilman, where he practices as a trial and appellate attorney on a broad range of matters, including contracts, employment, discrimination, indemnity, and more. He’s a published author and a frequent presenter and has been recognized by Best Lawyers in America. Mr. Hensley holds a JD from Boston University. Mr. Hensley, thank you for joining me on Engaging Experts.

Kevin Hensley: Happy to be here, Noah.

Noah Bolmer: Great. Let’s jump into it. You’ve been an attorney since 1989. When did you first start working with expert witnesses?

Kevin Hensley: Early in my career, I didn’t use experts a lot. I defended mostly homeowners, and a lot of those cases were simple and didn’t require a lot of expert consultation. In the early days of my practice, I tended not to even use medical experts. As my practice developed, and got a little more complex, I found that in many cases, it was essential to use experts. That part of my practice has evolved over the years.

Noah Bolmer: Is it just your practice that’s evolved, or has the use of experts become more frequent in general among attorneys?

Kevin Hensley: The latter is also true. I think that clients are extra cautious these days on the defense side, which is where I practice. There’s some concern over increasingly large verdicts, and I think that out of an abundance of caution. Many of my clients would, if in doubt, prefer to have an expert on board.

Noah Bolmer: How do you decide when you’re going to bring an expert in during a case? I’ve had some experts tell me, “I wish the lawyer would give me a little bit more time. They need a report by tomorrow.” This and that, and other experts have told me, “They give me plenty of time. [They give me] plenty of heads up.” How do you make the determination? I know obviously, experts cost money, and the earlier you bring them on, the more that it’s going to cost. What are the factors that go into making that determination?

Kevin Hensley: It’s not much of a cost. In fact, sometimes, if you bring an expert in too late, it’s going to cost you more because they’re going to have to scramble to catch up. Generally, the earlier, the better because experts are helpful not just [in] providing testimony, but they can be helpful in guiding you through the technical issues [of] the case. I rely on my experts not just to testify but to help me understand the issues and conduct the investigation. Sometimes, to propound a discovery that I might not have thought of, so the earlier the better in my view. Sometimes, of course, you don’t recognize the need for an expert until later in the case, but as soon as I spot an issue that I think I’m going to need technical help with, it’s my practice to get someone on board as soon as possible.

Noah Bolmer: Is that typically more of a consulting role, or do you bring people in assuming that they might need to testify?

Kevin Hensley: I always assume that they might need to testify, and if they don’t, if the case settles, or if that issue turns out to be not critical, that’s fine. When I think about retaining an expert, I’m always going to assume that they’re going to testify for me because it could happen.

Noah Bolmer: What are the main things that you’re looking for? What makes a great expert, in your opinion, beyond [being] knowledgeable in their field? What are the more intangible factors in deciding whether an expert is going to be good and it’s going to be a quality engagement overall?

Kevin Hensley: With the thought that the expert may well wind up testifying, communication skills are the most significant feature of an expert, as you say, apart from technical competence. If an expert is brilliant in their field but can’t convey that knowledge to a jury, then it’s a wasted engagement. I find that there are experts out there who are brilliant and who understand their area of expertise, possibly better than anyone in the world, but I can’t use them as an expert because they can’t convey what they know to a jury in a way that the jury is going to understand. My experts need to be able to talk to jurors in a way that is understandable and not intimidating. That means using plain English as much as possible instead of technical jargon. It’s hard for some experts to do. Most of the experts that I use have a knack for it. They understand that jurors aren’t technical experts and aren’t going to be able to grasp jargon and lingo that isn’t used in common everyday speech. That’s the most critical thing I’m looking for with an expert. The ability to convey their fabulous knowledge to the jury in a way that the jury is going to understand.

Noah Bolmer: You mentioned before that being an expert witness is partially a teaching role. You’re bringing on somebody with a wealth of experience, which is something you don’t have or might not have and must assume the jury won’t have. The jury is going to [consist of] laypersons. How do you know during the initial phone call whether or not the [expert] is going to have those intangibles? Whether they are going to be able to teach both you and more importantly, the jury all of these technical aspects while still coming across as relatable and [not]  using a lot of jargon? Are you able to determine that during the initial phone call? Does it sometimes happen that you have an engagement, and it turns out that they might not be the best person for the job for that reason?

Kevin Hensley: That’s happened, and it is difficult to get that sense in an initial phone call. Even in a short phone call, you can get a good idea if someone comes across as conversational and has an easygoing style. [Those are things] that you usually can tell in an initial phone call, but I have had experts where I’ve gotten far down the road, and only at that late point have I learned they aren’t great at communicating. Sometimes, when that happens, it’s too late to switch horses, and you have to work with that expert as best you can. It has happened to me, and I have had experts who have been less than ideal on the witness stand. In an ideal world, you would find a new expert, and start over, but sometimes, if a trial’s approaching, you just can’t do that. In most cases, you’ll get a good sense in that initial phone call if the person you’re talking to is going to have that knack for speaking in good plain language that is going to be understandable for a juror.

Noah Bolmer: Worst case scenario, somebody doesn’t do great, or they may not have been as you said, ideal on the stand, but they want to get better. [They] want to improve themselves. What are the things expert witnesses can do to become better at conveying their expertise to laypersons?

Kevin Hensley: The first thing is to recognize their audience. Accomplished technical experts often talk amongst themselves. They’re reading technical papers. They’re talking to their colleagues, and they use their own language when they do that understandably. It can sometimes be hard to shift gears, but a good expert will be able to do that so it can take practice. The witness I was thinking of was not having a particularly successful time testifying. When I was working with him, we would practice questions and if he gave a jargon response, I’d stop him and say, “How about this? Instead of using the technical term, how about something that the jury can understand?” He did get better. It was never perfect, but in working with him we made some improvements. Practice makes perfect and I think that holds true for communicating with jurors. It’s a bit different when you’re in the courtroom on the witness stand as opposed to a practice session with an attorney. That’s where an experienced witness sometimes has an advantage. At times, an expert who has testified before will have a little [more] success in the courtroom being used to the give and take with a cross-examining attorney. That said, I’ve had experts with zero experience testifying, and they’ve done a fabulous job just because they’re decent and honest people. The jury relates to them and while experience testifying can certainly be important, it’s not a prerequisite. There are witnesses who have never testified before and have done a good job for me. Sometimes, better, because they  come across as less rehearsed. They come across as more spontaneous. That can work too.

Noah Bolmer: Everybody has to start somewhere. Everybody’s first time is their first time.

Kevin Hensley: That’s right. That’s right.

Noah Bolmer: Let’s back up to those initial interviews. Besides getting a feel for the expert, what are the other things that you look for in that call? Tell me what a call from Kevin Hensley is like when I first receive it as an expert witness?

Kevin Hensley: I always like to have a Zoom call if possible. An in-person meeting would be ideal, but that’s hard to arrange these days. Zoom calls are fantastic because you get more information with a video than you do with just a phone call. You just get a sense of how the witness is going to appear. You pick up on body language. You pick up on tics that the witness might have. An initial Zoom call is a great tool to get an initial sense of how the witness comes across. That’s number one. If you can do it on a Zoom call, it’s much better than a telephone call. That’s always possible to arrange that these days with the omnipotence of Zoom. On the first call what I like to do is have a general conversation. Talk about the witness’s background. Find out a bit about where they live. What sort of things do they like to do? Just a normal conversation to get a sense of how they’re going to come across. I ask about the split between plaintiff versus defendant work. If a witness works exclusively for defendants, it’s not a disqualifier, but it’s something to take into consideration if a witness does equal work for plaintiffs and defendants. That can be a real advantage.

During the initial call, I’m always thinking about what questions this witness is going to face on the cross-examination. One of those is always, “Sir, how much of your work do you do for plaintiffs?” “How much for defendants?” If there’s a nice, even split there that’s going to be an advantage. In this initial call, I’ll eventually get to the subject at hand. I want to find out how the witness’ experience bears on the case that I have. Talk about the facts of my case and about the issue that I have. If possible. I’d like to get some sense of what the witness’s opinion might be on my issue. You have to tread carefully. I obviously don’t want to tell my witness, “So what’s your opinion going to be?” That would be inappropriate and premature. There’s no way they can get enough information in an initial phone call to formulate an opinion, but I think that often I can at least get some sense of where they going to come down on an issue, and if so, that can obviously be helpful if I have a witness who tells me, “Sorry, there’s no way I could ever give you an opinion like that.” I’d say thanks very much and we’d move on. I want to feel out the expert as much as possible as to where they would come in on an issue. I don’t expect a final answer, but it’s helpful to at least have a feel for how they’re going to treat the issue.

Other things that I will sometimes ask, but not always depending on the profession, is if there are any disciplinary proceedings or malpractice actions that I should be aware of. It’s a bit of a sensitive subject, but most experts don’t mind. They understand that’s something that we need to know, and it’s again something that they might be cross-examined on the stand.

I want to find out if they’re going to have time for the project. Experts oftentimes are busy, and it can be incredibly frustrating if your expert is not responsive and if they’re telling you, “I’ll get to it.” While you’re not going to get a binding answer from your expert, you can at least get a sense if they’re going to have time to take on the project you envision. Those are all the things that I like to cover in that initial phone call. All that information can be helpful as you make the decision whether to retain the expert.

Noah Bolmer: Are you always the person who first reaches out, or do you sometimes have a paralegal or an assistant do the initial round of interviews with potential experts.

Kevin Hensley: In my practice, it’s always me. I think that it’s essential to have that direct contact with the potential expert, and while I might have some help searching for experts from paralegal and staff, the initial interview will always be with me and I have almost exclusively, direct communications with the expert, without anyone in between. I don’t use paralegals or assistants other than in scheduling matters. Anything substantive. I’ll always talk to the expert. You never know if there’s a bit of information that might come across in that subsequent phone call, and if it’s a paralegal or assistant, they might miss. Experts are critical for a case that I want to be the one talking to them.

Noah Bolmer: Absolutely. Let’s talk about confidentiality and privilege. How do you set up confidentiality vis-vis reports, paperwork, and materials that you give to your expert in preparation of the case?

Kevin Hensley: The rules that I have are this, phone calls are best. They aren’t discoverable. Talking on the phone with an expert about his opinions, tentative opinions, further questions, and all of that is best done on the telephone. It’s the safest way to go. Generally, at least in federal court and I think in a lot of states, your communications with your experts are typically protected. Typically, they won’t be discoverable, but there are exceptions to that. It’s also true that some judges don’t necessarily follow the rules. Anytime you have something in writing with your expert, there’s some risk that it’s going to be discoverable. I always have that in mind. I do communicate with my experts by email, but I always have in my mind, what if this gets discovered and what if the other side sees this email? If you keep that in the back of your mind, you’ll be appropriately cautious in what you write and mean in the unlikely event that that email is discoverable. Hopefully, it won’t be a problem. The best way to provide facts to an expert is through documents rather than sending an email to the expert saying, “Here are the facts of the case. What’s your opinion?” That’s discoverable and I wouldn’t want my expert on cross examination to say, “I got these facts from the attorney for the defendant.” You want to send the documents to your expert and then have a phone call after he’s had a chance to review them and talk about it. I’m sure I will have my own notes about those documents and my own questions to ask. That dialogue will be helpful for shaping further investigation. If you follow those guidelines you won’t get in trouble with the discovery of your communications with your expert.

Noah Bolmer: Does Zoom and other telepresence software impact that at all? In other words, is there any light between a phone call and a Zoom call in terms of discovery?

Kevin Hensley: I haven’t thought about that. As long as a Zoom call isn’t recorded, I treat it as a phone call. That should be fine, and nobody should be recording their Zoom calls with their experts. I think Zoom and phone calls should be interchangeable.

Noah Bolmer: One of the things you mentioned is scheduling. You might have someone to help with scheduling, and one thing you make sure of is that your expert has enough time. How do you go about figuring out and estimating what that time may be at the start of a case? If you’re just getting started and you bring an expert on, how do you go about estimating that it’s going to be these many hours for a report, and there might be a deposition and all of that. How do you go about making those assessments?

Kevin Hensley: It’s case dependent. Some cases are much easier than others. Many of my cases are personal injury defense, and for a medical expert review it’s easy to estimate based on the volume of medical records. That part is easy. An independent medical exam is generally a set fee and a set amount of time. That’s easy. For experts other than medical experts. It can be a lot trickier. Sometimes those estimates are a work in progress. I find what we initially think is an easy project, turns out to grow in complexity and it’s not unusual for those estimates to be revised significantly. That can cause a lot of pain for the client who’s paying for the expert services, but sometimes it’s just unavoidable. The experts I work with, always in good faith, tell me what they think it’s going to take, but I recognize that it can change. As I said, it can be a work in progress. We do the best we can, and we recognize that events on the ground might change those circumstances.

Noah Bolmer: When experts try and have a more complicated billing contract to protect themselves from eventualities like going to settlement or I’ve heard experts say that just employing a specific expert who has such a name in their industry, might cause a settlement. They want to put in a minimal amount of money. How do you work with experts to get a fair price for their services that make sure that everybody gets paid for the work they do?

Kevin Hensley: Most of the experts I work with charge hourly. We generally don’t see per case charges and the hourly rates. In the jurisdiction in which I practice, I won’t say they’re standard, but there’s certainly a range of reasonability for those rates, and we try to keep the experts within those ranges. There are experts who insist on non-refundable retainers up front, long as that’s reasonable and if my client is agreeable, I can work with that. I don’t think a non-refundable retainer should be very big. I don’t think you should be paid a lot of money for a one-hour phone call and then the case settles. A reasonable, non-refundable retainer is something I can work with, and obviously the key is just to have everything in writing up front. If everybody understands what the hourly rates are, I rarely run into billing issues with experts. Once in a while, somebody has put excessive time into a case, and that can cause friction, but I would say most of my cases don’t run into that. I think most of the experts I work with spend the time they need to, they bill for that time and it’s fair. That’s not a problem.

Noah Bolmer: Recently, I wrote an article about time tracking software for expert witnesses and I thought that it might be helpful that a lot of these programs have an audit trail that they can leave, that they worked as “X number” of hours doing something like that. Do attorneys ever audit their clients’ time?

Kevin Hensley: You mean, do we audit-

Noah Bolmer: -the expert’s time. Sorry. Excuse me.

Kevin Hensley: Only in an informal- I don’t audit in the sense of demanding documentation for each hour spent. What I will do is- the bill should be itemized by hours spent. In a rare occasion that I see something that looks out of line, I’ll call the expert and talk about it. What I’ll say is, “This seems excessive”, and I’ll tell the expert my concern is that my client might not want to use you in the future. I’m worried that if I pass this bill along, my client’s going to tell me don’t use this expert again. I tell you that has an impact a lot of times, they’ll say, “Listen, let me see if I can knock that down a little bit.” As I say, it’s rare that I have to do that, but that can be an effective strategy and it’s not dishonest. I know that if I pass that bill along to the client, they might well raise a red flag. I try to head that off at the pass to avoid that sort of issue.

Noah Bolmer: Speaking of reusing expert witnesses, do you have a steady stable of expert witnesses that you prefer to use?

Kevin Hensley: In some cases, I have medical experts that I’ve had good success with and that I like to use. When I can, I’m cautious about overuse. For example, I have five or six orthopedic doctors that I use regularly. I try to make sure that in a given year, I won’t use an expert more than once or twice. It’s still going to be an issue, there’s still going to be cross-examined about that and it’s something that, you know, you must deal with up front. But if my experts are good, if they’re competent, and good communicators, I don’t think the jury is going to hold it against me that I’ve used that expert before. I know that the opposing counsel will try to score some points on that, and it’s something I must consider, but I think jurors understand that experts are paid and that they do work on multiple cases now and then. It’s not going to bother them if I use an expert 15 times in one year, that’s more of a red flag for a juror, and I would avoid doing that.

Noah Bolmer: Do you have any stories about cases where an expert witness came into play and changed either the outcome of the case or even the way that you went about presenting cases to juries?

Kevin Hensley: I’ve had a couple of interesting experiences. I had a case involving a fall from scaffolding and there was something funny about the plaintiff’s description about what happened. I had a construction expert who was good. We got together with the client, which was the scaffolding company, and we rebuilt the scaffold exactly as it existed at the time that the plaintiff fell, and it was a major undertaking. It took the client and the expert a couple of days to put this scaffolding together. What we found was that it was unlikely that the plaintiff’s accident had happened the way that he said it did. We couldn’t rule it out completely, but it cast a lot of doubt on the plaintiff’s story and that case wound up settling. That investigation was instrumental in getting a good settlement on what was a serious case, and I thought that was above, and beyond the call of duty and was impressed with that expert. I’ve had other experts, too, who I felt went above and beyond. Recently, I had a case involving an orthopedic injury, and my sense was that the injury was not related to the accident. I retained a good orthopedic surgeon who looked at the records. I expected him to tell me, “There’s absolutely no way this is related.” But he was much more cautious. He said, “I have some concerns about this.” He and I went through the records together and carefully narrowed them down to a few key records. After we finished going through them together, he was satisfied and said, “I feel good about this now.” That was impressive to me. It would have been easy for him just to tell me what I wanted to hear and say, “Yeah, you’re absolutely right.” That’s one of the things that you don’t want from an expert, you don’t want them to just tell you what you want to hear. It’s going to end up badly for you at trial. By taking that extra time, I thought that this expert helped me out a lot. This case is pending, but I’m going to be much more comfortable about this case going forward because of the extra time that the witness spent.

That’s a much more general principle, which is one of candor from your expert. It’s important that they tell you not only the good things about your defense but the bad things as well. Those two things educate you so that if you go to trial, you’re not going to get blindsided by something in the evidence that your expert didn’t point out to you. It may mean that you have to settle the case. It may mean that your expert tells you, “This is going to be a tough one.” I need to know if I have a bad case so I can tell my client and maybe we’ll settle. The danger would be the expert who wants repeat business and tells you what he thinks you want to hear because that way you’ll hire him again. Most of my experts don’t do that. It has happened a couple of times in my career and when I’ve talked to the expert about it, I’ve expressed my dissatisfaction. I said, “You can’t do that. You must give me the good, the bad, and the ugly.” When I have an expert who tells me, “I’m sorry. I can’t help you with this one.” That’s what I want to hear and need to know. That saves me some real embarrassment in front of a jury.

Noah Bolmer: Maybe it’s the case that saying, “No, I can’t do this one. You don’t have a case.” might help them get another case, and they will be helpful in the future. Is that right?

Kevin Hensley: Oh absolutely. It does. It definitely guarantees that I will come to them again. The other thing that can be helpful is if they do additional work for me and they’re on the witness stand, being cross-examined and they say, “Yes, I handled four or five cases for attorney Hensley.” On redirect, I can say, “Doctor, have you ever had a case for me that you told me you couldn’t help me on?” They’ll say, “Absolutely, I remember several cases where I’ve reviewed the records, and I told you this injury is legitimate.” That impresses a jury and it takes the other attorney by surprise. By shooting straight with me and telling me if I’ve got a bad case, it makes it much easier for me to use that doctor in the future.

Noah Bolmer: When you’re doing preparation, is that something that you tell them directly? “Don’t blow smoke. I need to know what you think about this.” Is it something that you are looking for? The person who would naturally say that.

Kevin Hensley: I’d say it’s both. I think that comes up most frequently after the expert [has] reviewed the records. Not so much in the initial call because I want to assume that they’re going to shoot straight with me, but once they’ve reviewed the records and we have this sort of initial discussion about their thoughts on the case, that’s when I will ask, at the end of the conversation, if not sooner. What do I need to know that’s bad about this case? I just want to make sure they understand that. Most of them know that implicitly, but to avoid any miscommunication, I’ll always say in that initial phone call, “What are our problems here? What are the warts on this?” We’ll go over those and that’s a crucial part of the process for sure.

Noah Bolmer: What other preparation do you like to do with expert witnesses for depositions or even trials? Do you ever bring in jury consultants, or do you do mock cross-examinations? What sorts of preparation techniques do you find to be the most effective?

Kevin Hensley: I’ve never used jury consultants. I’m probably a bit behind the times in that regard, and maybe there will come a time when I will use them. I’ve felt, somewhat conceitedly, that I have a good grasp of juries. I’ve tried a lot of cases, and I’ve gotten a lot of feedback from jurors. Someday, I’m going to have to recognize that I can use some help in that regard, but so far, I haven’t.

When I prepare experts, there are a couple of key tips. One is to have multiple sessions. It’s hard to cover everything in one session with an expert, and I find that after an hour, at most two, both the expert and myself max out, and the returns start diminishing. So, I try to keep the sessions to two hours maximum and then break. Then we’ll come back another day. Maybe the next day, maybe the next week, to have another session. It lets the case marinate for a little while. And then the second session, I think both myself and the expert will have additional thoughts, and we might have new ideas that we haven’t thought of. During the preparation, I like to talk about the entire case, not just the area that the expert is going to help me on. For example, I often use an expert who focuses on medical billing and assessing medical bills. That’s a narrow issue. It’s got nothing to do with the rest of the case, but I like to talk to him at least briefly about what the case is about. He knows the name of the plaintiff. He knows what happened to the plaintiff and has a general understanding of what’s going on. If he’s cross-examined and he’s asked a question might be wildly inappropriate, but he might get asked, “What do you think about this accident? Do you know anything about my client?” If I’ve briefed my witness on that, I won’t get up and object. I’ll let him answer. He’ll say, “Yeah, I understand. The plaintiff that had a bad accident had some bad injuries. I certainly feel very bad for what happened.” That’s an unexpected answer and I think it will resonate with a jury.

Preparing my witness for the entire case, I think that helps. Then, of course, I definitely want to ask practice questions of my expert during these prep sessions. That’s for two reasons. One is we want to cover the substantive part of the case so that I know the witness understands the issues. I also want to test out how he’s going to answer the questions. We talked about this initially. This overarching concern with communicating with a jury and by running through practice questions, I can flag answers that are too complex, pedantic, and wordy. We can work on those and we adjust so that the jury’s going to understand them.

Then the final reason for doing these practice questions is I want to make sure my witness understands not to fight the other attorney on cross-examination. I don’t want my witness to get into arguments with the other attorney. I want him or her to keep their cool. I want them to, if things get heated, to show the jury that they’re the ones staying calm and that it’s the other attorney who’s hyperventilating and overreacting. That too can score big points with the jury. I’ll test it a bit. I’ll ask some aggressive questions and I’ll want my witness to respond calmly. I want them, if appropriate, to use a little humor to deflect some of the cross-examination and all that I think can be very helpful. I’ll give you one final example, Noah, of one of my favorite expert witnesses was- I used to try lead paint cases, and one of my medical experts was a woman who practiced medicine in Chicago for many years starting in the 1940s. When I had her on the witness stand, she was in her nineties and she looked exactly like your grandmother. She talked exactly like your grandmother. She was the most down-to-earth witness imaginable, with decades of experience as a pediatrician. Jurors loved her. The other attorneys feared her, despite the fact that she was a 90-year-old grandmotherly-looking witness. And the reason jurors liked her so much as she talked to them conversationally. She never got upset and kept her cool, she kept her sense of humor. And if I could have a hundred expert witnesses like that one, I don’t think I’d ever lose a case. Sadly, that isn’t possible. That is a good way to wrap up, I think, the key points for good expert witnesses. Excellent in front of a jury. Excellent substantive knowledge. These are the things we’re looking for.

Noah Bolmer: One of the things that you brought up earlier that I wanted to ask about quickly was the case with the scaffolding that they went in and rebuilt. At first, I thought maybe we were talking about a scale model, but do you mean they literally constructed actual scaffolding?

Kevin Hensley: Yeah, this was in a warehouse, and it was probably 100 feet by 100 feet footprint. It was 4 stories tall. It was impressive.

Noah Bolmer: How was that communicated? Through a report, or was it a video? How did you go about turning that into an effective demonstrative?

Kevin Hensley: We never went to trial on that one, so we never had to, but we did take pictures. We explained to the attorney for the plaintiff that this is what it looked like, and here’s why your client’s story is really implausible, and that’s as far as it went. That was what we needed to get a good resolution for the case.

Noah Bolmer: In general, have demonstrations been effective for you? Do you typically try and do something visual with photographs, PowerPoints, or what have you?

Kevin Hensley: I personally stay away from computer visuals unless I have to. I’m kind of old fashioned. I still like to blow up photos. I think, to be honest, it conveys the impression that maybe my client doesn’t have as much money as the other side has. Personally, it fits my style a bit more. I recognize that the world is changing, and for some document-intensive cases, you need to have visual displays. You have to be able to put the documents on the video screens, and that’s good. It can help a jury as well, but for the most part, I tend to keep it simple and low-budget.

Noah Bolmer: Before we wrap up, I have one final question about vetting. I have a lot of experts who have been experts for quite a long time. Twenty, thirty, forty, fifty, or more years sometimes, and they’ve written a lot. It becomes difficult for them to keep track of every article that they’ve ever written on a topic or any note that they’ve ever put on the Internet. How do you make sure when you are first deciding whether or not to use an expert that they haven’t said something that’s contrary to the way that you want your case to go? Do you just rely on them to tell you, or do you do some extensive online vetting?

Kevin Hensley: It depends on the case and on the importance of the case. First of all, I ask them, of course, and see if there’s anything I need to know about. Then, I will generally do a search through prior testimony, and a lot of databases online where expert testimony is available. That’s the most important thing. It can be tough, to be honest, at times, when an expert has three hundred published journal articles to go through all those. If the case was important enough, I’d probably get some assistance to do that. In an ordinary case that can sometimes be hard to do. Searching prior testimony, though, is critical, and anything that’s available to the other side on the Internet is something I want to look at. That’s typically, my focus when I’m vetting an expert.

Noah Bolmer: Absolutely. Any last advice for expert witnesses?

Kevin Hensley: No, We’ve covered most of it. It comes back- The big picture is that the best expert in the world is not going to be helpful to you unless they can convey their opinions effectively to a jury. That’s how I’ll leave it.

Noah Bolmer: Absolutely. Mr. Hensley, thank you for joining me today.

Kevin Hensley: Thanks, Noah. It’s been a pleasure.

Noah Bolmer: And thank you to our listeners for joining us for another episode of Engaging Experts. Cheers.

Kevin Hensley, Partner, Barton Gilman

Kevin Hensley is a partner at Barton Gilman where he practices as a trial and appellate attorney on a broad range of matters, including contracts, employment discrimination, indemnity, and more. A published author and frequent presenter, he has been recognized by Best Lawyers in America. Mr. Hensley holds a JD from Boston University.