Ten ways lawyers kill their own experts
Expert witnesses can make or break a case, but many lawyers inadvertently destroy their experts’ credibility. In the teleconference “Ten Ways That Attorneys Kill Their Own Experts,” panelists discussed common bad habits of lawyers that derail their experts and the ways to avoid them.
Short notice requests: The most frequent way lawyers hurt the quality of their experts’ testimony is finding their experts at the last minute. Many of these experts say they cringe when they get a call from a lawyer needing to designate an expert within a couple of hours. A short time span does not allow enough time for experts to familiarize themselves with the evidence and prepare for their deposition.
Inadequate budgets: Many lawyers set aside only a small budget for experts or agree with their clients to set a flat retainer fee. That may not be enough money for experts to get the appropriate resources they need to formulate opinions that withstand the opposition’s cross-examination. Be realistic about costs and don’t negotiate down to a client’s budget, if it will hurt the quality of an expert’s testimony.
Assumptions without evidence: It is common for lawyers to suggest that their experts incorporate certain assumptions when formulating their opinions, but evidence must support these assumptions. Unreasonable assumptions lead experts to deliver unsupportable hypotheticals that smart opposing counsel will shoot down quickly.
Introducing bias: Many lawyers expose their experts to toxic influences that may bias them—a big mistake. For instance, in divorce cases, lawyers should ensure their experts and clients do not speak with one another as their interaction could result in sympathetic experts who subconsciously integrate bias in their testimony.
Ignoring experts’ input: Preparing expert witness designations without soliciting the experts’ input is another mistake. It can be a fatal blow to witness testimony if the scope of the designation is narrower than the expert’s testimony—a judge may rule to exclude it upon request of the opposing counsel.
Discovery process mistakes: Many lawyers allow the discovery cutoff date to pass without first obtaining their experts’ wish list. Experts need certain documents to formulate professional opinions—therefore lawyers must ensure they include their experts in the discovery process in order to build solid testimony.
Experts outside their comfort zone: Asking witnesses to testify about issues outside the scope of their expertise is another no-no. Lawyers must remember that their opposition is trying to hurt the credibility of their case, so they should make sure their experts can verify their testimony through their professional knowledge of the situation at hand and their professional credentials.
Other ways in which lawyers set their experts up for failure: providing an expert with a distillation of the evidence; accepting a stipulation to an expert’s qualifications; and allowing for direct examination on Friday and cross-examination on Monday. Allowing the opposing counsel an entire weekend to prepare for the expert’s cross-examination is just bad planning and gives the opponents an advantage in finding loopholes in the case.
The CLE was sponsored by the Section of Family Law and the Center for CLE. Presenters included: Michael Kaplan, principal of Kaplan Abraham Burkert Associates; Carlton R. Marcyan, senior partner and executive committee chair of Schiller DuCanto & Fleck LLP; and moderator Peter M. Walzer, founding partner, Walzer & Melcher LLP, who is also on the Legal Education Committee and the Publications Board of the Section of Family Law.
“Ten ways lawyers kill their own experts” is from the October 2009 issue of YourABA, an e-newsletter for ABA members.