What Attorneys Want from Expert Witnesses

By Noah Bolmer

On our podcast, Discussions at the Round Table, expert witnesses reveal what they want from attorneys for an effective engagement. For a more complete picture, we’ve posed the same question to attorneys who have also worked as expert witnesses: Richard Leisner, Stanley Gibson, and Stephen Embry. What makes a great expert witness? 

Richard Leisner 

Corporate and Securities Attorney and expert Richard Leisner advises deference to attorneys, and proper planning to ensure you have sufficient time to thoroughly prepare for a case. 

Respect 

A good [expert relationship] will involve shared professional respect. Part of that is—remember, I’m a transactions lawyer and have had litigation partners who have helped me as an expert—I [became] a better expert because I talked to [attorneys] and they told me what to do and not to do. I think if respect is apparent to the person on the other side of the table, that’s a start. The next thing, is that the respect will be borne out by the expert and the engaging counsel, who both do an honest day’s work to their side of the equation.  

Take Your Time 

The most important thing is to understand the rules, and to have a reasonable basis in fact, analysis, and law for the opinions that you’re going to put forward. That requires you to invest time. It’s like doing a deal. If you slap a deal together, maybe it’ll work out. Maybe not. In the case of an expert witness, you will be better off if you do that last proofread. You will do a better job of getting ready so that you don’t spend the trip back to the courthouse thinking of all the things you wish you’d done.   

Stanley Gibson 

Technology and Patents Attorney, Stanley Gibson describes what (and when) credentials are important. Further, he reinforces the necessities of communication, neutrality,  and understanding and sticking to your role. 

Credentials 

You need to get your expert through the Daubert process or through a motion to exclude in state court. So, you want to make sure they are qualified, and the more credentials they have for that process is important. When you get to the trial itself, the credentials are probably not as important if they are qualified to testify—I do not think the jurors distinguish that much based on where someone went to school, and if they have relevant experience. Both sides probably have that. That is not what the case is going to turn on.  

Communication & Working Relationship 

You must find someone who communicates well and does a good job testifying in front of the jury. Someone who is a good teacher is clear and precise in what they are saying, and easy to understand. I also think it is important that you like the experts you are working with, and you find them enjoyable to work with, and someone who makes time for the case. We are not the client, but as the attorney working with the expert, a good working relationship and enjoying working together is important. You are going to spend many hours together, whether in person or virtually. So, I think you must look at the qualifications, the ability to testify well, and how easy they are to work with. You want to make sure that you can rely on that relationship. The best experts are going to go beyond just testifying and giving an opinion. They are going to help you, and, with the other experts, are going to come up with ways to attack the other side’s experts. That is important. 

Neutrality 

I think the expert has to be expressing their opinion, not the attorney’s opinion. I do not want them regurgitating something the attorneys have told them. I think when that happens on the other side, I can figure it out, and it’s going to hurt the expert’s credibility. I think one of the things that the jury system does well, is evaluating a witness’s credibility. If it is someone else’s words or opinion, and that expert is uncomfortable with it, they’re going to see that, and not trust the expert. I don’t think that’s a good idea.  

Role of the Expert 

I think it depends on what the experts are doing, so if you’ve got an expert in a limited role, you want them to stay in that limited role and not to expand that. If they have questions about that, I want to hear what their thoughts and questions are. I don’t want to get on something that is off—or maybe on another expert’s—topic. You must have close coordination.  

I was brought in to try a fraud and a real estate breach of fiduciary duty case by a colleague. The expert was fantastic. He was our forensic accountant. He went through the books, the records, the e-mails, and pulled out things changing the nature of the case. We are critical to achieving a great result. After the jury returned with some questions favorable to my client, the case was settled. That expert did a fantastic job digging in and doing a forensic analysis of not just the accounting documents, but e-mails and putting together stories about what happened in the breach of fiduciary duty. I love it when an expert can do that within their role. He found things that we were not expecting. 

Staying in Your Purview 

[Good experts] are easy to work with. They are good teachers. They are available. They have time for your matter, but they also have the competency to do it. If you are a new expert or a relatively new expert, you must check your work. Recently in another trial, a damage expert and his report looked great. For the defense, he whittled down the damage. We’re trying to figure out what’s happening and how to get the low damages. Finally, the CFO for the client started digging into the numbers. He had said he was going to use numbers in a certain date range and had gone beyond that date range and had thrown all his calculations off and made them much lower. Oh, Lord. Now he did not do it intentionally, but he did not have the right. People checked his work product, so we waited until trial and cross-examination, and he ended up having to retract his whole opinion and testify that all of his numbers should be higher. You do not want to have that situation if you hire that person. But the time to fix that is to make sure you hire the right person. If you are an expert, you [want to] make sure you are not caught up in a situation like that. It is embarrassing to be caught with your pants down in the middle of the jury trial. 

Stephen Embry 

Attorney and legal blog publisher Stephen Embry notes that the best expert witnesses are not only well-versed in their fields, but likeable and great communicators. He advises getting to know the trial process, helping your attorney with strategy where appropriate, and a healthy dose of caution in any public postings or writings.  

Likeability 

The best experts know what they are talking about. They can communicate it, and they are likable. They are the kind of people I like to use. “Is this expert somebody I would like to go to dinner with—not from a personality standpoint—but the desire to be likable, communicative, and empathetic?” It comes through in social relationships with me as the lawyer and the jury that this person likes talking to others and doing what they are doing. That is critical. 

Know the Process 

They need to take time off when they are not engaged and go to a courtroom and watch a trial. Watch somebody testify and get the litigation processes down. I am not sure saying litigation is a game is a good way to put it. It is a game in the sense that there are rules and there are unwritten rules. There are a few. The best experts I know get that feel from what is going on. Many lawyers I have seen break down because they just leave it to the expert. They do not sit down and have this conversation. Questions about expectations on both sides and experts need to demand their lawyers tell them what they expect. What does the lawyer want? That to me is the key to having that kind of communication and dialogue. 

Help Strategize 

A good expert will be a team player with the lawyer on the case, tell the truth, and look for solutions. One of the best experts I have ever had was a fire scientist. If there was a problem in the case, he would say, “Maybe we can approach it this way.” Then, he would try to come up with a way around it and deal with it in a way that would be persuasive from our standpoint. Telling the truth that has to be it. It is like everything else in life—you can either say, “There are problems, and there is nothing we can do about it,”—or you can say, “There are problems, but let’s look for a solution.” So, depending on the expert’s personality and the facts of the case, I’ll do all those things. It’s wonderful when you have an expert, so you don’t have to do all those things. An expert who knows what to do. Those experts are not born, they get there through experience—which is a problem these days because we do not try as many cases as we did when I was a young lawyer.  

Use Caution when Posting 

[E]xperts need to be aware of what they say publicly in articles and the courtroom. Now, our lives are pretty much open books. It used to be that some of that stuff was hard to find out. Now, it’s easy to find, so experts need to constantly be aware of what they’ve said before and how that might play into what they are doing—and they must be prepared to distinguish or support it. [. . .] Experts need to be aware and understand how to use technology with their testimony. Many experts will not have that knowledge. They cannot assume that the lawyer will be technologically proficient and able to suggest tools that the expert can use to help tell the story. Experts need to be thinking about that. None of us can afford to hide from technology and what it can do. 

While different attorneys have different ideas of what makes a great expert witness, some themes continually show up—credibility, neutrality, being frank with bad news and assisting with finding  solutions, likeability, mutual respect, and understanding both the role of the expert in general and your role in the particular litigation. Oddly enough, the list largely mirrors what experts want in the ideal attorney. 

For over 30 years, Round Table Group has been connecting litigators with skilled and qualified expert witnesses. If you are interested in being considered for expert witness opportunities, contact us at 202-908-4500 for more information or sign up now!