Expert Work Parameters & “Taking Sides”

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140 Island Way # 288 Clearwater, FL 33767 Ph 727-467-0700 Fax info@expertcommunications.comExpert Work Parameters & “Taking Sides”We received a question about ―taking sides‖ and the scope of expert work from an expertwitness and asked our expert community to share their experiences, advice, and comments –and boy did they! The original question is below, followed by the responses.Best --------------------It always seems that when I read over the depositions and other information provided by theattorney who hired me, I find all the facts, clues, discrepancies they need for their case. I amsurprised to say that I truly believe no one actually sits down and READS in these lawsuits.Anyway, I have provided this information to the attorneys to help them in their cases, as well myneutral interpretation/report of what happened, why, how, etc, etc.But I always ask myself, am I doing the right thing gleaning and giving them the info they needto make their case? Recently, I made a list of contradictions the defendant made in deposition.In a case I'm working on now, I was able to point out that it was the city that had been negligent,not just the homeowner.While these are all things that the attorney (and his clerks, office, etc) should be doing, theyapparently are not. Don't get me wrong--they're thrilled with my work.Part of me feels that it's my job to help and be a "team player;" part of me thinks it's not my jobto do their work for them (in this way). On the other hand, in every case but one (turned out allinformation had not been provided to me) the information and feedback I've been able toprovide has help the attorney settle the case out of court.Can you give me some guidelines as to what is appropriate and within my bounds as an expertfor me to do, and what is too much, crossing the line into "taking sides?" Below are the many responses we received to this question from readers of our newsletter. This is both a problem and a blessing, it depends on how you view you it and how you bill it.Rest assured most attorneys will be more than happy for any expert to do the heavy lifting for1

them and make their case; that is one of the reasons they engage an expert. It is not generallythat they studied the evidence carefully and then sifted for the best expert to judge the veracityof the claim, rather, they get a general sense of the case, feel around the substance of the caseand based on instinct and economics decide if it feels right to pursue-remember, they aregenerally not in any way expert in the things they ask you or me to evaluate. They then send itout for (generally) approbation to an expert- sometimes they do not get validation of theirimpulses and either abandon the case because it is meritless, or seek a different expert that willtell them what they want to hear. That may help them feel better, possibly settle a case whenopposing counsel is less informed than they are or risk being very embarrassed in court; inwhich case this expert may have a dry spell for a while. The truth is, we are a service industryand our service can be the review, advice, testimony or all of them. If you find that this goodwork you are doing is precluding valuable court time by bringing these cases to settlement, thencharge more for the review. Alternatively, you can start with supplying the attorney preliminaryfindings on the case and see if he has a clue where things are going. If you feel he is lookingfor you to settle the case for him, let him pay for your time and give him a thorough reportagethat will be well compensated. There is nothing wrong with that- he will get what he needs andyou will get what you rightly deserve. Staying totally objective is impossible because you havealready read the case and all the nuances of it and you know if it has merit in your field or not,but your opinion can and should be -----------------------------It's real simple, you read the material, form you opinions and share them with the attorney. Thatshould be what the attorney wants from you. He/she doesn't want to be blind-sided. For anexpert to stay an expert for a long time, integrity is their most important --------------------------In response to the inquiry as to whether an expert should tell the client what they gleen from thefile information that he (she) thinks the attorney should be doing, the answer to me is simple.What does the expert think he is being hired for? An expert is a consultant and it is his job andresponsibility to advise the client as to his opinions and findings regarding anything in the filethat falls within his area of expertise. That would include pointing out errors and contradictions.In my own area of premises security clients want and expect me to assist in any way that doesnot compromise my position as an expert --------------------------While you are supposed to be a "neutral" expert, in fact your job is to give the side whichretained you your best opinion(s), and the reasons for them. If part of the basis for your opinionsis "contradictions" in testimony from the other side's witnesses, so be it. Remember, in mostcases it is your expertise, not that of the attorney or staff, which allows you to draw expertconclusions from such -----------------------------------In my opinion, it is the expert's obligation to communicate whatever they find when reviewingthe case to counsel.2

I have often found that my technical perspective finds items of interest in transcripts and otherdiscovery material that were not noted as substantive by those without a technical background.On more than one occasion, this information was crucial to the ------------------------The boundary you can't cross is being an advocate instead of an expert. Advocacy is thelawyer‘s job. I too find a lot of things the attorneys don't and when I question that I find theyhave a reason they don't want to go down that ------------------------I cannot claim any special wisdom in this challenging ethical domain, but your question broughtto mind a question I was recently asked in a Federal court. "Why do you do expert work?" It'sactually a good way to frame the ethical issue, since the motivation for doing the work is driven,at least in part, by one's moral compass. I answered that I enjoy the small part of my academiclife devoted to expert work for three reasons. First, I was trained to do truly definitiveevaluations of complex and interesting patients at the borderland between neurology andpsychiatry. But, as we all learn the day we finish our fellowships, insurers do not reimburse forthe eight hour interviews and examinations such patients require and deserve. Almost the onlyway to be paid to do comprehensive assessments is medico-legal work. Second, the cases areoften genuinely extraordinary: dramatic puzzles of human psychobiology. And third--a factorclosley related to the first--expert work is where you get paid a good wage to tell the truth.That is, I can only relish this work so long as I feel engaged in the truth-seeking quest. So Iadmonish all the attorneys from the get go: I'm entirely willing to accept your money, but neverimagine that I am working for the benefit of your case. I am working, as best as my knowledgeallows me, to find the truth and report it, no holds barred. To work with that graniteunderstanding is an intellectual delight. And, despite the fears I've heard others express thatthey're hamstringing their practice by demanding this understanding with attorneys, I've foundthat the majority of attorneys (and even more so, judges and jurors) regard this neutralenthusiam for truth-seeking as a refreshing departure from the toxic miasma of expert bias.Please note, however, that the quest for the truth is not the quest for justice. As much as wecare that justice occurs, I'm well aware of the literature warning experts not to think ofthemselves as makers of a just world. Sometimes truth and justice are two dogs quarelling overa bone. Since I fully acknowledge that my expertise in medicine in no way authorizes me toarbit justice, I settle for the role of the truth-seeking dog, and--sighing at the occasionalmismatch between justice and law--let the chips fall where they -----------------------According to the Federal Rules of Civil Procedure, the purpose of an expert witness is to assistthe trier of fact to decide a case by explaining the technical aspects.It is my position that when an expert is retained, they are a consultant to the hiring attorney. Theexpert's job is to assist the retaining counsel. In some cases, experts are retained specifically toconsult and not to testify.3

An expert is "out of bounds" or taking sides when they begin to advocate for the position of theclient of their retaining ----------------------------This is what i do: what i do is ask them (the hiring entity/client) to define precisely what theywant me to do, first verbally and then in written form, and then i do only that for my fee or mytime.Anything at all beyond this is another job. you are no less a team player for meeting youragreements. this is exactly how "good businessmen" attorneys operate. you be as wise. that'smy "2 --------------------------Helping my client interpret depositions and other documents is part of my job. I suppose someexperts are hired only for their testimony, but that's never been true for me. Indeed, I'm oftenhired long before anyone is sure a trial or arbitration will occur.I don't want to be too hard on your friend. It's great to see someone who worries about suchethical issues. But I think he or she may be confusing the role of an expert with the role of ajudge or arbitrator. We experts have to tell the truth, and sometimes our testimony hurts ourclients. To that extent we are objective. But we're not really neutral, and everyone in thecourtroom knows it.It's never wrong to help your client by pointing out the -------------------------An independent consultant (expert) must be just that."independent." You owe your attorneysand their clients the best that you can provide. That includes both the good news and the badnews. Both pieces of news bolster their case. The good news points out the strengths on whichthey want to build. The bad news helps them prepare where their case is weak. You may evenfind that you have to tell them that they have no case. Disappointing to them, but it saves a lot ofenergy and expense down the road.Remember that the safest communication with them, especially in the initial stages, is verbal.That gives them the chance to do what they want/need to do without having been saddled withdiscoverable material.As to discovering stuff they haven't seen, that's good (as long as they are paying for your time todiscover it!) You may see things with a fresh eye (and ear) that somebody missed. You may seethings that are obvious to you because of your expertise that they couldn't see at all becausethey don't have your expertise. And.they may be sloppy, tired, or too busy or focusedelsewhere. Always take what you find as an opportunity to educate your attorneys. They will beable to handle their cases much better when they understand the technical detail.4

After all your work you probably will end up with opinions that seem to take sides. Youremotions, knowledge, and values will definitely come into play. That's OK. The crossing-the-linepoint comes in if you forget to remain independent. You sure don't want to introduce elementsor opinions that ignore or contradict your expertise just to bolster your emotions. You can getblind sided and/or sound like a hired gun if that happens.And, good luck. Overall, ain't this a fun gig working with those legal folks!? I know I love ----------------------When I read info that is not helpful to the attorney that hired me, I call the attorney. I explain theproblem and how I would have to testify. I let the attorney make the call. The attorneys like toknow the good with the bad. Hopefully, I can provide this insight before they designate me asan expert. That way they can pay me for my work as a consultant and we both go our separateways. I can usually tell if I can be of help early on. I will not take a case if I disagree with thelawyer hiring me. If I learn too late, I give him the bad news without putting it in writing whichwould be discoverable. That way they can decide if they need to --------------------------There is never too much information, just make sure it is -------------------------It seems to me that the attorneys who hired you must have taken the depositions and shouldknow what is contained in them.On the other hand, as an expert, it is your duty to render unbiased opinions to assist the court.Also, since you are employed by either the plaintiff or the defendant, you must also besomewhat of an advocate for your client. Being an advocate may be adverse to the facts of thecase. So as an advocate you must sometimes dance around the obvious facts and search forways to point out benefits to your client. This sometimes is mind boggling to find positive resultsfor your client or vice-versa. In any case, always tell the truth. Even though it may bedetrimental to your client it is the attorneys responsibility to defend his assumed position inregards to the client. It is your responsibility to be truthful in assisting the court with yourexpertise.When reading depositions and other materials you will gather facts. You should put these factsin your report to substantiate any opinions and conclusions you will later develop. You will needto put as much information in your report as possible in order to combat a possible "Daubert"challenge. A "Daubert" challenge can restrict experts testimony to ONLY what is contained inhis report, therefore if you leave an important fact out you might be doing a disservice to thecourt and to your client.My experience as an expert goes back to 1982 and I write about 15 to 20 expert reports peryear with one or two actually getting into court. My testimony in Marine cases has stood up inappeals court with a few rulings being significantly reliant upon my opinions and conclusions.5

-------------------If you feel as if you are being used as a law clerk, perhaps you should consider raising yourengineering fee significantly. Revise your fee schedule for work related to legal matters, anddate it. Provide all your legal clients with a copy. Your fee structure for legal work should bestructured depending on the nature of the assignment. Rates for written reports, depositionsand courtroom testimony are typically higher than for researching and defining the ---------------------------I too, frequently give advice to the hiring lawyer on what I see and read It is a part of the serviceI perform when hired. The use of the information is always up to the attorney. On occasion theattorney does not like the facts but as an impartial expert, all must be reviewed and reportedthough it is often done verbally. When I do it in writing I am very careful to be very emotionallydistant but clearly factual. I look forward to reading how others ---------------------------Sounds to me like this expert is just doing his job, and a good one at that. As an attorney andInsurance Law and Claims Expert I can relate to his concerns and perceptions. I think the bestservice an expert can provide is a clear concise analysis based on the facts of the case asfound in depositions and other documents . These are the factual points that form the basis forthe experts opinions. Attorneys are not unaware of most of these factors,but need aknowledgeable expert to take the time to review the information and use their expertise toorganize and assist the attorney who has other things to worry about as well. Plus you get paidwell for providing that ------------------------------As an expert, I see myself squarely in the court of team player. The contradictions I find may notbe so obvious to the attorneys. They have hired me to help them with their case, and I see thediscovery of those contradictions as one of the ways I contribute and demonstrate my valueand expertise.After all, you do want the attorney to feel your services are valuable, don't -----------------------This is a situation which can lead to bad relations, but I believe 'experts' must keep balance ofavoiding bias. This may mean you lose a client. Such clients often are case 'losers' anyway, soyou will be better to be rid of them, to avoid being connected to bad cases, or seen as sayinganything the client pays for. Prostitution is illegal, but not with experts.Two examples in my experience:1. A plaintiff claimed about 400k in damages resulting from a rear ender that made him unableto finish a commercial development. I prevailed with the carrier to send me a couple hundred6

miles, and check up on the guy. He was a scofflaw, locally much disliked, and I caught him witha telephoto moving lumber. His case went up in smoke. I was a hero.2. Same lawyer sent me to another building locally as he was going to sue the neighbor fordumping water in his insured's property. He had already authorized payment. I found theinsured was not truthful, and told him the suit was without merit. The insured's building was acouple of feet below the street and has been flooding for decades. I got fired. But I was notassociated with bad judgment in a case bound to loose. The claim should have beenthoroughly investigated first, not after payment.Hope this helps. It is better to keep to sound analysis to maintain a reputation that can bedamaged in a lot less time than it takes to make ----------------------Tell "the truth, the whole truth and nothing but the truth." Yea, yea, I know this sounds corny butthat is what we have been hired to do.I believe it is our obligation to advise our clients to the limits of our ability. This includesidentifying errors they may have made, errors made by the other side, and errors we may havemade. The only caveat is to do some in a responsible manner. As you are surely aware, anydocument we produce is discoverable, so it‘s important to keep that in mind when reviewingcase materials.I have developed a form that I use to review materials and do my best to limit my notes to thosewhich trigger or remind me of important points. I do my best to limit the writing down ofconclusions or questions which I might raise to opposing counsel.I have also worked with attorneys who have asked me not to write anything down. I wouldadvise you to establish the grounds at the start of any relationship with an attorney. Once youaccept his retainer you owe him (or her) your best. They rely on us to see things from ourperspective, one that's independent, insightful and inclusive.Again, "the truth, the whole truth and nothing but the truth."We get paid for doing our job, whether or not we th

Expert Work Parameters & “Taking Sides” We received a question about ―taking sides‖ and the scope of expert work from an expert witness and asked our expert community to share their experiences, advice, and comments – and boy did they! The original question is below, followed by the responses. Best wishes, Meredith

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