Understanding the Story the Attorney Wants to Tell
As you prepare to write your report and then defend it in deposition and court, it is important that you understand the story the attorney wants to tell about the case. You are part of a team, and each team member has a role in telling that story.
A Good Expert Will Know How to Narrow Down the Theme
Attorney Matthew Morr recalls one expert who excelled at telling the story and tracking its changes:
The first expert that I worked with was Bill Carey. He sadly passed away a couple of years ago and we worked with him quite a bit on lost profit cases. He was a certified public accountant, who in his spare time, judged mock trials, took continuing legal education courses and was well-read on persuasion and how to talk to judges and juries, and he worked a lot on his writing. […] He did a good job of putting together narratives and stories. Early, in my career, I had the opportunity to work with him on some cases that went to trial and he was a huge asset. Not only was he an expert in the field, but he also had the added value of being able to help us narrow down our themes. He would watch our opening statements to make sure they tracked with what he said. For folks that have been to trial, there is a process where you start narrowing down themes and phrases. He was a big help in doing that, and as a young attorney, it was a great experience. I learned from this expert, and we worked well together. When I contrast that to some experts, I have seen on the other side that is not the case. What they are doing is not consistent with the persuasive story the lawyers are trying to put together.
The Vital Role of Experts in the Attorney’s Narrative
Brian Weinthal makes sure his experts understand the entire story that they are part of and can support it all the way through:
In terms of maximizing your use of an expert and getting the best out of your expert, what I find critical to do is make sure the expert knows their part in the story that you are telling. I think a lot of people retain experts and say, ‘Mr. Expert, here you go. Here are the documents I would like you to review and I would like you to come up with [your] opinion on X.’ I think you need to go beyond that when you work with an expert. I think rather than just silo the expert or give the expert the chance to look at a limited number of documents in the case, you have to tell your expert what is the story that we are telling here. The story, of course, is that X company looked at the biometrics in these previous years. They found that biometrics was going to work well for them and that ultimately because of the research they did into that they decided to make a decision, X, Y or Z, in the future. ‘What I need you to do, Mr. Expert, when you come to your part in this story is to give me the feedback that a technology company or other company with Company X might have needed to use biometrics in the early 2000s. Does that make sense, Mr. Expert?’ You need to give them their role in the story. They need to know […] what part they are playing. It is like when we talk about kids in a high school play. If the child does not know where their character fits into what they are doing, they are going to walk on stage, deliver their line in a vacuum, and it is over. If the expert knows what it is you are relying on them to do [for] their part of this tale that you are telling the jury, they are going to be far more effective in terms of communicating what it is that they are trying to get to the bottom of. Not only that, but they are also going to be more persuasive because they know what it is you are trying to do with what […] they are giving.
Getting Started with Problem Solving: Identifying the Pain Points
Not every part of the story will necessarily be favorable to your client. But, as expert Craig Schlumbohm notes, by getting involved early you may be able to provide some context which makes a difference in how potentially problematic information will be interpreted:
Where your case is weak you could spend a lot of time and energy trying to deflect what is going on, but most people in the room know what is going on. When you look at the situation from the standpoint of, ‘Okay, we know that our guy made this mistake, whatever that mistake was, they made it. Why did they make it?’ […] Do not try to argue that they did not make the mistake. Try to find out why they made that mistake and try to figure out who else was involved in their failure. That is the way that you can do the best job of defending your position. At least this is from the defense side, and honestly, the plaintiff’s side. It is getting people to understand that. There is a mistake. There is what happened. Be good. Be reasonable. Be willing to talk. But if the starting point is the Titanic did not sink. You have problems. Look, the boat sank. Okay, we know it hit an iceberg. So now let’s just start realistically talking about what the result of that is. I think people oftentimes want to be so set on that win that we are going to get 100% verdict. Many times, they provide bad information and I see the same thing on the plaintiff’s side. It is overreaching in a case to try to get 27 subcontractors in the case and at the end of the day, you do not have anything on half of them except ill will coming back at you. To me, it is being reasonable.
Recent rule changes make expert/attorney brainstorming safer. Weinthal explains:
The new federal rules give more freedom for attorneys to speak and converse with experts than when I started […]. It used to be that any document, any wisp of anything you had, immediately had to be turned over to an expert and the other side. It was discovered the federal rules have tightened since then. There is more freedom for attorneys to communicate with experts about theory and about what their actual views of a case are. If you are not maximizing your time with an expert, to explain to them their role, you are just letting the best opportunity to sell a persuasive part of your case go by. I see people spend tons of time with lay witnesses and go through this cursory analysis with the expert thinking, ‘Well, you are an expert, so you should be able to just deliver what it is you are going to deliver persuasively.’ It cannot work like that. You have to include them as if you are preparing a lay witness. It is the same kind of theory.
While you can’t control the attorneys, it is important to ask them to share the whole story so you can see where you fit and keep them apprised as the story develops. Then, as you create your report and prepare for testimony, remember that you are part of a larger story, and that you may need to adjust (or suggest adjustments) based on changes in context.
If you are interested in being considered for expert witness gigs, consider signing up with Round Table Group. For nearly 30 years, we have helped litigators locate, evaluate, and employ the best and most qualified expert witnesses. Contact us at 202-908-4500 for more information or sign up now!