Although in the “real world” scientists changing their minds may be the badge of intellectual honesty, in litigation the expert who backs away from a position or changes an opinion is supplying the opposition with a source of impeachment. Any time the expert makes a written record of his or her thoughts or opinions, the opposition gets a “paper trail” of potential impeachment material. To avoid this, tell your expert to keep writing to a minimum.
Of course, you should never instruct an expert to lie or develop a conveniently forgetful memory. The expert, like any other witness, must answer all questions truthfully. But under our adversarial civil system, there’s no reason counsel or the expert should assist the opposition by providing written suggestions about potentially damaging areas of inquiry that might not otherwise occur to the opposition.
For example, if the expert had trouble reconciling a particular fact or item of evidence with his or her overall theory at one stage of the case, the expert must disclose that difficulty if the opposition expressly inquires about it at deposition or trial. But the expert has no reason to make a written record of the problem, thus ensuring that it will be brought to the opposition’s attention.
So, be wary of anything that creates a written memorial of the expert’s thoughts, opinions, doubts, or concerns. Pay special attention to reports, the expert’s notes made to himself or herself, and correspondence to and from the expert.
- Reports. Experts frequently prepare written reports while their thinking is still in the formative stages or before all the facts are known. Thereafter, something may develop during the deposition of another expert that requires modification or a shift in emphasis by one’s own expert. Written reports inhibit the expert’s flexibility, and flexibility is frequently essential to proper preparation as additional facts are elicited and additional theories of liability and defense are evolved. Encourage your expert to report orally and not to prepare written reports until discovery is complete and you request such reports.
- Notes. Although the experienced expert may have sufficient savvy to keep notes from being useful to the opposition, it’s dangerous to assume that any expert, experienced or otherwise, will do so. When the expert is deposed and the file demanded, the file may contain a complete “paper trail” of all the expert’s doubts, concerns, changed positions, and the like. Impress on the expert the need to confer orally with you when a problem, doubt, or concern arises, rather than make a written notation of the matter in the expert’s file. When you want a written note, you can make the note and keep it, rather than having the expert do so.
- Written and Electronic Communications. Avoid editorial and subjective comments in all written and electronic communications (e.g., letters, emails, text messages) with the expert. And tell the expert to do the same when communicating with you. Instruct the expert to visit or call when a problem or question arises, rather than highlighting the matter by expressing it in writing for later discovery by the opposition.
For guidance in dealing with your own expert witness, turn to CEB’s California Expert Witness Guide, chap 8. And check out CEB’s program Preparing and Examining Expert Witnesses: Reports, Depositions, and Cross-Examination, available On Demand.
Other CEBblog™ posts you may find useful:
- 5 Steps to Preparing an Expert Witness to Do Battle
- Getting Your Expert Ready to Testify
- 4 Tips for Effectively Presenting Your Expert
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