Just Say No: When to Turn Down an Expert Witness Engagement
By Noah Bolmer
For newer expert witnesses, it can be tempting to accept every potential engagement, but it is crucial to carefully vet, and only take those which are a good fit. Turning down a job is always preferable to underperforming, and successful experts avoid getting wrapped up in unproductive engagements.
An illustrative excerpt from a recent podcast with imaging forensics expert George Reis:
George Reis: I probably turn down half the calls that I get.
Noah Bolmer: No kidding. That many?
George Reis: I think so. My wife jokes when she overhears any of my phone calls—she says, “So did you get out of another job?”
Check for Conflicts
Even the appearance of a conflict of interest is reason to reject an engagement, and it should be the first consideration experts make, even if the opportunity is otherwise ideal. Forensic account expert David Gannaway states, “The first thing we do at our firm is do a conflict check to make sure that we have not worked for this client four or five years ago on a separate matter, or if it was something related to the issue we have in front of us. We do the internal conflict of interest check.”
Nutrition science expert Dr. Douglas Kalman avoids even tangential conflicts to avoid any ethical problems down the line:
I will give one example. Two companies have been suing each other for the last couple of years. It happens, I guess, in every industry. This one is the beverage industry. Both sides have reached out to us multiple times. “Can you be an expert for us?” Each time, we say “No,” and they ask, “Why?” I said, “Well, there is a perception of a potential conflict of interest because as an individual, I was at the wedding of somebody that works for one of these parties. Therefore, there is a perception of conflict.” I would rather not get involved, especially when both sides are asking us. It is not like you are going to get into a bidding war to sign a baseball contract. That is different, but you need to be upfront because the lawyers and law firms you work with do not want to be caught by surprise by anything during the discovery phase or other aspects of the case.
Stay in Your Lane
During the initial phone interview, make sure that your expertise and experience are appropriate for the specifics of the case. Do not be tempted to accept engagements which you are not fully qualified for. Insurance expert Kevin Quinley advises, “If the subject matter is beyond or at the periphery of our knowledge expertise, it is tempting to say yes when you ought to say no.”
In broad areas of expertise, such as civil engineering, it is important to carve out a niche where are completely confident, according to water resources engineer Dr. David Williams:
I try to stay focused on water resources engineering, which is part of civil engineering. Civil engineering is one of the largest disciplines within engineering. You have mechanical and industrial, but there are probably as many civil engineering practitioners as all the other engineers combined. That shows you how big it is. [. . .] For instance, water resources can involve things such as water treatment. I do not do that. Irrigation, I do not do that. I do rivers, reservoirs, levees, and erosion control. I stay within that and about a third of my inquiries I refuse or turn down saying, “You are right, those sources are related to water, but that is not my area of expertise.” I hate to see work go, but the worst thing I could do is be a disservice to that side’s attorney.
Similarly, sport, fitness, and recreation expert Dr. Laura Miele recalls:
I received an e-mail right before Thanksgiving regarding a boxing case. I have taken boxing cases before, but this one was pushing my wheelhouse, so I turned it down because it was not necessary. I am already a busy expert, and even if I was desperate and needed my last dollar, I would not take it. I am ethical and at the end of the day, I am the one who must support my opinions and create a relationship with the client. I do not want to take on a client and not do my due diligence, then get on the stand and be asked questions that I cannot answer to a degree of professional certainty. I would not do it.
Attorneys will often pursue full-time academics as expert witnesses, as they typically have public credentials. Sports management expert Professor Gil Fried advises careful consideration, as reputation is critical in academia:
I have a different perspective than a lot of others because I’m a full professor, so my reputation and academic field is the most important asset that I have. And as such, I will not take any cases where I think it’s just too borderline, too frivolous—whatever terms we might want to use [. . .] That’s it. “If I could be of any service, don’t hesitate to contact me, but I don’t think you need me now. If you find something significant later on, we can talk.” But it’s being upfront and honest like that, that gives you the ability as an excellent witness to be able to control what you’re going to be working on but also to gain respect in the industry because you’re not trying to just [say], “Hey, it’s a case. I’m going to take it on, and I want the money and that’s all that matters.” Is there a value added that you can provide as an expert witness?
Personality Clashes
Not all personalities click, and it is perfectly reasonable to decline an engagement where the expert-attorney relationship would simply be at odds. Each attorney is different and as you gain experience, the personality types you gel with will become apparent. Mr. Reis assesses that fit right out of the gate:
In my initial call, the most important thing I do is measure the personality of the attorney. If I think we are not going to get along, they will want me to go in a certain direction, or they will be argumentative, I will refer them to someone else or turn down the assignment. I indicate that I am too busy at that time.
Supply chain management expert Robert Handfield prefers attorneys who emphasize educating, leveraging his own experience as a professor:
Many people approach me as an educator and say, “We want you to help educate the jury.” That is my sweet spot. I love to teach and educate. I am good at it, and I have written several textbooks. I know how to explain things in a simple, direct way. So, if it makes people aware, what do you want me to do? Is it to educate the jury? Is it to frame this issue? “Please describe what you would like me to testify to in my report.”
Financial expert Terry Stroud takes a similar gut-check, stating simply, “I take about one-third of the cases after talking with the lawyer. I will decide if it does or does not suit me. I could do it from a technical aspect but if something about the case does not make sense, I do not take it [. . .] it is difficult when a lawyer pleads [with the expert to accept an engagement], and then you have the initial interview and decide whether you, the lawyer, or the law firm will hit it off from a personality aspect.”
Check Your Schedule
Even with a solid scheduling strategy, there will be times where you cannot fit in a potential engagement. Before accepting, make sure that you have adequate time to meet expectations, including any additional research, preparation, and execution.
Experts’ schedules are not always the culprit for condensed timelines, according to oil and gas expert John Hughett. When attorneys have unreasonable timing expectations, it is best to decline:
Timewise—attorneys hate me saying this, but it is true—some of them do not plan. They know they are going to use an expert, and they do not get me involved until they are far down the road. They have taken depositions and that sort of thing. I think the mindset is “well, we can save some money by not having me working.” The disadvantage to their side is I could have helped them during the deposition by framing questions for them, which I do regularly. Quite often, I listen in on depositions. Sometimes I am present, and when I am not present, I listen in, so I can feed them questions in real time in a position that turns out to be helpful.
Insurance expert Thomas McCloskey agrees, noting:
My pet peeve is an attorney who has known for over a year that they need an expert witness and then send you a large box of material in the last two weeks saying, “Ingest this and get me a report in five days.” It cannot be done, and I send it back saying, “I am sorry, I am not your guy.” I need adequate time to do it. When people give you a short amount of time, I think they are being disrespectful. They assume what you do is so mundane and simple that you should be able to shake all of their papers and prepare an opinion for them
Understand the Facts
It may not be possible to fully familiarize yourself with all aspects of the case before accepting an engagement, but experts should endeavor to understand the major parts prior to agreeing. If an otherwise qualified expert cannot aid counsel, it is best to take a pass, according to engineering expert Dr. David Bizzak:
[W]hat I do for clients if they have something they want me to take a look at—I will ask them for some preliminary information. They may have a police report. In an accident reconstruction, they may have some photographs of a failed product or some background about what happened. I go through and do triage, look at it, and [might] say, “I do not think there is something here I can use to help you render an opinion. I can look it up, but I do not think this is worthwhile for me to engage in.”
Experts can be selective about the types of cases they agree to. Dermatology expert Dr. Howard Maibach prefers to take on cases that have a public policy component, noting, “So first I ask [the engaging attorney] for a simple presentation. What is their position? What is their client asking you to do? Second, I asked them if this was likely to affect public policy and get to a higher court—then, I am much more interested.”
Ethical Considerations
Above all, expert witnesses must always adhere to an ethical framework. Digital media forensics expert Michael Primeau avoids engagements where his opinion may be perceived as “bought”, rather than given neutrally:
I will turn down engagements when we feel like it is not a good fit to apply the methodology and whatever comes out the other side is what comes out. [. . .] I am not going to prove what you want to be true if it is not what the evidence says. [. . .] It could be this or it could be that—and whatever the evidence represents is what I report. Where there are cases where you feel I am going to be a “hired gun” or that is what they are pushing for—and it may not be intentional—they come back and say, “no, that is not what I meant” and that is fair—they have their opinion—but if they are looking to push their agenda, forensic science will not work. I am going to do it the way that it needs to be done and let the chips fall where they may.
Experts have an important job in the broader societal sense, with major ethical implications according to mechanical engineering expert Professor John Abraham, advising:
I do recommend that experts are judicious as they decide which cases to take. You do not want to take on a case that is going to cause you to lose credibility, because it is going to impact your career later. Experts have a service to society. We have a role to help the court make the right decision and so there is an ethical obligation that experts have. Once I sign up for a case it means that I am committed to the facts of the case. I am not going to testify in a case where I think we are not in the right. I take cases I feel confident in.
When a client’s ethics are in question, corporate finance expert, Dr. Elliot Fishman, simply turns down the engagement, noting:
I have turned down assignments because I was not sure about either the credibility of the client or the legitimacy of their case. I never want to be in a compromised position, personally or professionally, where I am helping an attorney argue something that I do not sincerely believe in [. . .] I would never take on a case where I do not feel good about the client or the legitimacy of the claim.
While turning down work is never ideal, experts who do so judiciously demonstrate to future clients that they are ethical, responsible, and have adequate time for their engagement. It is always okay to say “no”. Exercising good judgment results in more fulfilling expert work, and satisfied clients.
Interested in being considered for expert witness opportunities? Consider signing up with Round Table Group! For over 30 years, we have been helping litigators locate, evaluate, and employ only the most qualified expert witnesses. Contact us at 202-908-4500 for more information or sign up now!