Winding Down your Expert Witness Engagement
By Noah Bolmer
Expert witness engagements can wrap up in many ways, from quick settlements to full judgments. Most of the time, the duration of your work with a client will not coincide with the case ending, and your focus will shift to evaluation.
Engagements are Open-Ended
Most engagements do not have a rigid timetable, with some going on for years. It is important to remain flexible as a case progresses toward completion. Dr. David Williams recalls, “I have had cases drag out for two or three years. You would not hear from your attorney for three months to six months. Then they come out and say we need something next week.”
Even when cases do have a rough timeline, expert witnesses’ own work might guide an engagement to settlement. Expert Jean Acevedo notes, “They may want an expert report, or they may not. You may get to post your report, or you may not because things get settled before going to trial. I have been an expert in civil litigation where, based on my expert report, there are no depositions. Suddenly, everybody is settling.”
Ask for Feedback
Once your role in an action as an expert witness concludes, solicit feedback. While your performance is still fresh in the minds of your engaging attorney and jurors, there is a solid opportunity to learn from any mistakes and enjoy your successes.
Attorney Stanley Gibson is quick to provide feedback to his experts, stating “I like to give them feedback. I do not usually have time right after they are done testifying in court because they get up and leave the witness stand, and off they go into the hallway, and I am still in front of the jury. Once the trial is over, I am happy to talk with the experts [. . .] I think that it is fantastic to give that feedback.”
Similarly, Dr. Jill Cramer finds attorney feedback extremely useful, recalling, “Afterward, I got a debriefing from an excellent lawyer. ‘Here is what you did that was good and natural. Here is what you could do better next time.’ I had a couple of lawyers do this with me to refine my skills as an expert witness, which I found to be tremendously helpful going forward.”
Jury polls are another valuable option for experts, if available. Expert John Hughett recommends, “If you are in a jury trial, ask the attorney if they will poll the jury, and see how you did. I want to know how I did. Win or lose. Was my testimony believable and credible? [. . .] In most of the trials that I do, there is a jury consultant involved who does the polling [but] sometimes it is an individual attorney. For example, in a patent case that we won [. . .] the attorneys were pleased because the jurors unanimously said, ‘Mr. Hughett won the case for you.’ It makes me feel good when I get something like that.”
Dr. Chuck Easttom advises self-reflection, stating, “[I]f I testify at a trial and the client who hired me wins the case, driving home I think about how I could have done a more thorough report or could have been clearer in my testimony. How can I do better next time?”
Disposition of the Case
Expert witnesses are not automatically made aware of the final disposition of a case. Some attorneys such as Stanley Gibson keep experts informed upon conclusiion, “I like to keep them informed of what is going on [. . .] It is confidential, so they cannot know the details of the settlement [but] they know it is settled. I like to keep the experts informed within the first hour after getting a verdict. [. . .] They do get invested in it and that is human nature, and nice to see as well. They may care about the client, and they want to know how it went beyond how they did their work.”
However, in most cases, experts have to proactively follow the proceedings if they wish to stay abreast, as Professor Marom Bikson notes, “I am not necessarily privy to how the matter was settled. Did I win or did I lose? [. . .] You do not see the end of it.” He continues, “When the judge makes the final decision, you are not around.”
It is your decision as an expert whether you wish to follow the progress of an action that you have previously worked on. Expert Bill Gervasi is largely unconcerned, stating “Usually, it is three months after I have submitted everything and I have not heard from them for a while, then I get this e-mail saying this case settled out of court. That is okay but, the only reason that is important to me, is because that tells me when to go delete all my archives and shred any papers.”
Dr. Elliot Fishman considers the ethical ramifications of keeping tabs on parts of the action, including the final disposition, that the expert is not privy to, cautioning, “During a case, I deliberately stay removed because I never want my testimony on the stand to be influenced, for example, by the deposition or the testimony of the opposing expert. Unless counsel shows me a motion or a ruling that would be relevant to my expert report, I do not want to see it. This goes back to my whole ethic of maintaining absolute neutrality and objectivity [. . .] If [the case] went to trial, the transcripts and/or the rulings are all on Lexius Nexius, and I will pull them up like everybody else.”
Repeat Business
It is not uncommon for a firm to maintain relationships with specific experts when their initial engagements go well. Expert John Catlett recalls, “I have been very fortunate to have some of the same clients come back to me and so we have a good working relationship and again, I don’t feel funny about picking up the phone or sending them a text message or something.” Expert Michael Primeau agrees, “Many of our clients back then are still clients today.”
Repeat work has the advantage of predictability according to Expert Craig Schlumbohm, noting “Much of our work comes from repeat customers or law firms. I think they know what we know, and we know what they know.”
Wrapping up an engagement is a personalized experience for expert witnesses. It is up to you to solicit feedback and follow the disposition of any cases you work on.
If you are interested in being considered for expert witness gigs, sign up with Round Table Group. For 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!