The Expert Expert: The Path to Prosperity and Prominence as an Expert Witness

The Expert Expert: The Path to Prosperity and Prominence as an Expert Witness

by Douglas L. Field


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Product Details

ISBN-13: 9781475971712
Publisher: iUniverse, Incorporated
Publication date: 02/08/2013
Pages: 228
Sales rank: 978,019
Product dimensions: 6.00(w) x 9.00(h) x 0.52(d)

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By Douglas L. Field

iUniverse, Inc.

Copyright © 2013 Douglas L. Field
All right reserved.

ISBN: 978-1-4759-7171-2

Chapter One


Any thoughtful reflection on the challenges of managing a large civil trial practice soon settles on the question of expert witnesses. Experience indicates that in a typically busy practice, expert witness problems arise at least weekly. Expert issues, what is more, are almost never routine or simple administrative matters that can be easily dealt with. They are almost always of crucial importance to the individual case in which they arise. By extension, then, they have ramifications that affect the entire law office. Whether as catastrophic as an expert's complete disintegration/collapse on the witness stand at trial or as simple as fractiousness in scheduling and calendaring, these failures cannot be ignored. They require the commitment of significant resources of time and energy for resolution. And frequently their impact is significantly negative on case outcome.

Expert witness problems can be grouped into three general areas.

First, difficulties often are generated by a lack of contextual understanding on the part of the expert of the peculiarities of the legal system and the courts. Much confusion results from the reality that assumptions and practices taken for granted by lawyers and judges are quite distinct from those that operate in other professional disciplines.

Next, there are breakdowns in good communication. These breakdowns result from failure to ensure explicit understanding between the referring attorney and the expert as to the purpose and scope of the assignment, the preparation of formal reports, and the provision of quality deposition/ trial testimony. Regardless of the source, communications confusion is repeatedly experienced in expert witness practice.

Finally, lack of collaboration in administrative matters of arranging examinations, inspections, meetings, depositions, and court appearances are a continual frustration.

It is occasionally (and mistakenly) said, "Leaders are born, not made." By extension it is also commonly, and again incorrectly, thought that a good expert witness is either naturally born to the work or not, and that skill as a witness cannot be taught. It is the thesis of this chapter that with reasonable and effective teaching, anyone with the native ability and faculties to attain the status of expert can, in addition, learn to be a good expert witness.

Specific and intentional education to achieve the foregoing is needful. It should comprise a carefully crafted curriculum of study with interactive elements that document progress and recognize and certify successful completion. Attention to the three concepts of context, communication, and cooperation forms a workable framework for appreciating how the witness potential and capability of experts can be markedly improved and is a point of departure for developing teaching strategies and curricula.

I. Context

The context of expert witness activity is the modern legal system and the courts. Therefore, a rudimentary understanding on the part of the expert of how and why the law and the courts function as they do is essential. Most experts are learned in some scientific field of inquiry. Medicine, engineering of all kinds, architecture, biomechanics, accident reconstruction, and accounting (to list only a few obvious examples) are all firmly rooted in scientific inquiry and the scientific method. All these disciplines rely fundamentally on observability, repeatability, and verifiability as the bases for the inquiry that undergirds their conclusions.

Law is unscientific in the sense that at its core, a legal case involves the process of reconstructing a single, unique past event, a past event that by nature is no longer observable or repeatable. Law is much less rooted in scientific method than it is in historical method and in promoting a fair and accurate reconstruction of the event upon which legal conclusions can be drawn and decisions made. Experts should understand that the epistemology of the law (that is, the way the law learns what it learns and knows what it knows) is altogether different from that of their own disciplines. In practical fact, this means that the expert's interaction will not usually be with other persons of scientific training and assumptions, but persons trained in history, rhetoric, English, and political science. One might profitably think of them as people who prefer crossword puzzles to Sudoku. Much confusion is generated between attorneys and their experts as a result of this underlying and dramatic difference in basic assumptions.

Inasmuch as expert witnesses undertake to expand their practices into the legal arena, they should anticipate and be prepared for the fact that referring attorneys expect them to be willing to commit to acquiring a working knowledge of the legal system and the hows and whys of its operation. Any effort directed toward preparing experts for effective witness work must consider as of first importance the context of the legal system, its historical development, and its current manner of operation.

II. Communication

Having cleared away the confusions created by poor contextual understanding, the improvement of all aspects of communication between experts and their referring attorneys is the next order of business. Capable expert witnesses need to be able to effectively impart information as well as also to demand it. Good expert communication starts with an expert who is able to demand from the referring attorney all of the information and details necessary both to understand the purpose and scope of referral and to complete the assignment. Any expert should feel free, not only at the time of referral but also throughout the pendency of the assignment, to contact the referring attorney and secure all necessary information and assistance.

Having thoroughly and completely understood the assignment and completed it with the utmost of professional ability and zeal, experts next face the challenge of communicating their opinions and conclusions in three different realms: (1) the report, (2) the deposition, and (3) testimony at trial. Obviously not all referrals involve every type of communication. Most assignments (in particular medical ones) will require a report. Some entail giving a deposition. Very few, but a significant number nevertheless, will require an appearance at trial.

Each of these communication events is distinct and requires the development of different skills. However, the order in which they occur is important, and each event builds upon the other. The preparation of a high-quality report forms the basis for effective deposition testimony. Then the giving of a good deposition, if it does not avoid the need for trial altogether, is essential in being prepared for a good jury presentation.

The specifics of the subject of communication are diverse and complicated, but it cannot be overemphasized that the development of superior expert witness communication skills is the axis upon which the entire effort turns. Their development alone will promote the other two elements of context and cooperation. Teaching good, full-spectrum communication by way of report writing, deposition testimony, and trial presentation is the essence of improving expert witness effectiveness.

III. Cooperation

After securing good contextual understanding and excellent communication, brief attention to the matter of mutual cooperation is warranted. Legal people often experience many challenges when attempting to secure examination and deposition dates from experts. Horrifyingly worse, from the perspective of the referring attorney, is being told that that the medical expert, as only one example, is unable to attend trial as scheduled due to an emergency surgery. It might be thought, particularly in view of the significant money that is invested in experts, that a high level of cooperation in scheduling and appearing for depositions and trial would go without saying. Recent experience demonstrates that it often does not.

No expert should undertake legal work without first fully understanding the practical requirements that it will entail. Trials are set months, even as much as a year, in advance of their start dates. In most states and in the federal courts, there is a detailed pretrial expert disclosure procedure that has numerous date-sensitive and inviolable time deadlines. Experts will be required to respond fully to the quotidian exigencies of legal work in terms of being willing to appear on comparatively short notice and to be patient with the numerous continuances and postponements, which always seem to characterize the legal process and which usually result from actions and considerations entirely beyond the control of the referring attorney.

Mutual cooperation is best secured through education. When the parties to expert witness practice clearly understand each other's demands, pressures, and professional obligations, the road to success is made easier. Although basic, some might say obvious, careful attention to full professional cooperation will be required in any process designed to develop better expert witnesses.

It is hoped this analysis demonstrates the reality that while expert witness practice is fraught with pitfalls for all concerned, they are not insurmountable. A comprehensive and carefully thought out training effort to teach experts to become good witnesses can readily be developed and will achieve commendable results. These results will measurably raise the quality of expert witness practice and testimony and will have the notable collateral benefit of lifting the quality of practice of all professionals involved and promote the effective administration of justice generally.

Experts are routinely learned and well qualified in their fields of study, certification, and experience. This does not necessarily mean, however, that they are automatically schooled and competent in performing as efficient participants in the legal process and as effective witnesses. While this next level of preparation is intricate and involved, good educational processes, curricula, and practical experience will adequately address any deficiencies.

This process of securing significant overall improvement of expert witness practice starts with a good working knowledge of the various constituencies who practice law and operate the courts. After that, there is needed a healthy appreciation of the challenges that confront experts on a daily basis. Finally, a brief discussion of experts and their offices, on the one hand, and legal people, on the other, will help each to understand how both can most effectively work together.

Chapter Two


The courts, litigation attorneys, and their offices deal with experts, their offices and administrative personnel, and expert issues every day. From the perspective of legal people, these encounters are routinely frustrating, difficult, and many times unrewarding. This is by no means to fix blame on nonlegal professionals, but it does point out the need for much greater mutual understanding of common and competing professional wants and needs. What follows represents the viewpoint from the legal side as to how expert professionals can better understand and address the exigencies of legal practice at those frequent times when the respective practices coincide (not to say collide!).

It should be recognized as a first order of business that a certain unavoidable symbiosis exists among the professions, such that awareness and embracing of the need to work together will promote more effective collaboration for the greater good of all. Further, legal practitioners fall into several categories, whose challenges and work routines are quite distinct from one another. They require separate understanding by those on the expert practitioner side. Finally, a number of practical suggestions for easing our joint path can be readily identified.

(It is candidly acknowledged that these observations are produced from the vantage point of a legal professional looking at other professions. It is to be hoped that a similar commentary might be forthcoming from the nonlegal perspective looking at the legal side. It would be gratefully received and carefully considered.)

The Reluctant Symbiosis

Howsoever unenthusiastically it may often be embraced, the symbiotic relationship between the nonlegal, especially medical, professions and the legal profession is inevitable and indissoluble. Medical issues, as a notable example, are central to (in some cases absolutely essential to) a significant number of prevalent areas of the law. These include personal injury law, family law, criminal law, and workers' compensation. Public entity law, corporate law, contract law, or real estate law are not thusly grounded. The legal areas listed above where medicine, again by way of example, and law cross intimately affect the lives, freedoms, and livelihoods of the litigants much more than in other areas.

The professional code of ethics for the medical profession obliges physicians as citizens to assist in the administration of justice.

The significance to society of our professions closely interacting is difficult to overstate.

The relationship between medicine and the law stands as an excellent starting point for illustration of the close relationship that at all times and in all circumstances exists between the various professions and the law. The following discussion emphasizes medicine but may be applied to other professions.

The proportion of legal cases in which the medical or psychological health of litigants, parties, or witnesses has been placed in issue is extraordinarily high, and the result is that all medical personnel who have treated these persons are likely to become involved in their legal cases. Medical issues represent essential inquiries in most injury cases, at both the claims and litigation stages. Lawyers, judges, and juries are dependent on the medical profession to explain, objectify, and predict the future of a litigant's medical situation.

Our societal vehicles for the compensation of injuries and the determination of criminal guilt or innocence cannot operate without medical participation.

Conversely, medicine depends on the legal profession for the social and financial stability needed for it to flourish. In no small measure, the law is a benefits delivery system that provides the equitable, orderly, and enforceable delivery of monetary assets to those who require medical care. When it works as intended, recipients of benefits will in turn compensate the people who are caring for them (and who often will need to continue to care for them on into the future). Courts, judges, and attorneys operate the system that secures the stream of commerce that enables effective medical practice to occur in peace, stability, security, and prosperity.

It is not possible to practice medicine in a vacuum where the law does not intrude.

There is, thus, an unavoidable interdependence between the medical and legal professions that their practitioners are left without alternative but to warmly accept and willingly embrace. Practitioners of other professions will appreciate that similar symbiosis exists between their professions and the legal profession and will likewise recognize the importance of mutual cooperation and understanding.

Full appreciation of the legal side of this equation starts with description of the various practitioners of our profession and the ways in which their activities fit into the whole of the practice of law.

Dramatis Personae: The Legal Cast of Characters

The principal groups of legal people that expert professionals can expect to encounter are judges, juries, attorneys, paralegals, and legal secretaries. Each group has its distinct professional and administrative challenges, and effective collaboration will recognize these and respond to them.


Excerpted from THE EXPERT EXPERT by Douglas L. Field Copyright © 2013 by Douglas L. Field. Excerpted by permission of iUniverse, Inc.. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents


Introduction: First Things Firstx....................vii
Chapter One Turning Experts into Expert Witnesses Preliminary Principles....................1
Chapter Two The Care and Feeding of Legal People: How to Work Together Effectively....................7
Chapter Three What Is an Expert Witness?....................19
Chapter Four The Common Law: The Heartbeat of Anglo-American Jurisprudence....................25
Chapter Five The Anatomy of a Modern Tort Case....................30
Chapter Six Discovering Discovery....................43
Chapter Seven The Claims Continuum: The Process of Case Evaluation....................58
Chapter Eight Party Down! Managing Risk and Reducing Exposure: A Primer on Insurance....................70
Chapter Nine Reporting for Duty: The Essentials of Writing a Good Expert Report....................79
Chapter Ten Contending with Contention....................93
Chapter Eleven A Trip to the Islands: What Will the Opposing Attorney Try to Do to Me?....................98
Chapter Twelve On the Playing Field: How to Give a Good Deposition—General Considerations....................106
Chapter Thirteen On the Playing Field: How to Give a Good Deposition—Principles of Giving Good Deposition Testimony....................114
Chapter Fourteen On the Playing Field: How to Give a Good Deposition— Predictable Attack Lines and Cross-Examination Techniques....................120
Chapter Fifteen The Big Show: Succeeding at Trial—A Successful Direct Examination....................132
Chapter Sixteen The Big Show: Succeeding at Trial—Winning on Cross....................146
Chapter Seventeen Avoiding Common Pitfalls....................159
Chapter Eighteen Impedimenta: Addressing Some Roadblocks to Undertaking Expert Witness Practice....................165
Chapter Nineteen How to Ensure Getting Picked....................168
Chapter Twenty The Question of Finance: How to Ensure Getting Paid....................172
Chapter Twenty-One On Record Keeping: A Case of Competing and Conflicting Considerations....................179
Chapter Twenty-Two The Internet, Social Media, and Expert Witness Practice....................183
Chapter Twenty-Three The Case for Expert Certification....................185
Chapter Twenty-four And Last Things Last: Concluding Thoughts....................189
About the Author....................191

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