Consciously or not, attorneys hold informal expectations of the experts they work with; these expectations concern both the expert witness’ professional approach and personality. Although informal expectations are not included in retainer agreements, they can significantly impact both the quality of the relationship attorneys develop with their experts as well as the outcome of the case.
Neuropsychologist and expert witness Dr. Glenn Hammel offers the following five expectations, which fall outside of an expert witness’ standard responsibilities, but are critical to helping you decide if this is a person you can and should work with and who will be an asset to your case:
- Expect an Expert to Be an Expert, Not an Attorney. As an attorney, you are an advocate whose goal is to win; the expert’s job, on the other hand, is to arrive at an objective opinion—regardless of the consequences it may have on your case. An expert should not embrace your agenda; when experts lose sight of the professional boundaries that separate them from attorneys, they become less effective and may jeopardize the case outcome. Explicitly state, from the outset, that you seek an unprejudiced, unvarnished opinion. Assure your experts that they will not risk your continuing professional relationship if they reach conclusions different from the ones you have been advocating.
- Expect an Expert to Be Able To Recognize His or Her Own Weaknesses. Even the most prestigious expert has deficits of knowledge, skill, or personality, which, if unacknowledged, can create blind spots that lead to vulnerable testimony. The expert’s own failure to temper confidence with recognition of her weaknesses may do more damage to her testimony than the cross-examination itself. In evaluating an expert, watch for signs of genuine humility and be very sensitive to arrogance, which can imply an unwillingness to learn.
- Expect an Expert to Educate You. Concerning their own testimony, experts should offer constructive tips about how that testimony may be vulnerable. And they should suggest ways that you can go about reclarifying opinions if their meaning gets lost in the courtroom fog. Experts should also educate you about possible ethical concerns or conflicts in their own background or their participation in the case that may diminish their effectiveness.
- Expect an Expert to Be a Good Listener. The ability to listen is vitally important — you don’t want an expert who will make a quick assumption about what you—or opposing counsel—is asking. Further, good listening projects a positive image in the courtroom; an expert observed listening demonstrates deliberative objectivity.
- Expect an Expert to Bring a Sober Passion to His or Her Work. Expect an expert to perform her role with a sense of grounded enthusiasm and vitality. For an expert to withstand the stressful nature of litigation, an element of passion is critical; it provides her with a focused emotional vitality and reserves of strength. If an expert brings excitement to the experience, be aware of possible risks: you may have to caution her that a passionate approach to forensic work should be subtle, not displayed in hyperbolic theatrics or loss of objectivity. If, on the other hand, you are dealing with an expert for whom professional passion does not come as naturally, you must cultivate an adaptive quality of passion. Try, for example, telling the expert the general or specific importance of the case you are working on.
Because they can influence the progress and outcome of your case, it is essential to acknowledge and critically examine your own informal expectations before hiring an expert.
On locating and retaining the best expert, check out CEB’s California Expert Witness Guide, chap 7 (2d ed Cal CEB 1991).
© The Regents of the University of California, 2010. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.