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American Bar Association - Defending Liberty, Pursuing Justice

FALL 2009

Vol. 6, No. 1

 

LITIGATION

 

Ten Things Your Expert Neglected to Tell You

“I refuse to answer that question because the answer may incriminate me.” No attorney wants to hear his witness assert his Fifth Amendment right against self-incrimination. And certainly no attorney wants his expert to assert such a privilege. However, if you fail to do your due diligence, you may find the expert you hired has a checkered past, and the case you built on his or her shoulders is about to collapse.

First, you owe yourself and your client the duty to ask your prospective expert the tough questions. Be up front with him. Let him know that you ask all your prospective experts some tough questions. You do not mean to offend him, and he should not be offended. Let him know that you, someone you know, or someone you read about had a bad experience with a seemingly qualified expert and because of that experience, you go through a thorough list of questions just to avoid any surprises. After you’re done with the interview, you are not done with your due diligence. Go online, go to colleagues, and expand your investigation to ensure the expert has no skeletons in his closet. As to your questions, they will help you find out the following that the expert neglected to tell you:

“I am a convicted felon.” Yes, your expert may have a criminal past. He may have been guilty of crimes that undermine his credibility. A simple online background search can get you the answers you want.

“I am a person of interest in a federal investigation.” It is easy enough to find out if an expert is a convicted felon. But what if he is a yet-to-be-convicted-felon? Just ask him. And by the way, do Google searches for your experts, and check the websites for the local papers where they reside to see if they have received any negative press.

“I lied on my curriculum vitae.” Yes, sometimes experts fudge their resumes. And yes, they are naïve, or arrogant or just pain dumb enough to think no one will find out. If your expert lied on his resume, his credibility is shot. Who is going to believe what he says about whether a given product is defective, when he lied about what degrees he earned or what course work he took? If there is anything that raises any red flags on his CV, ask him about it. And ask him the ultimate question, “Are there any issues on your CV I should be concerned about?”

“My professional license was suspended.” “So Mr. X, has your license ever been suspended, revoked, curtailed, or been the subject of an investigation?” Just ask. Also, he may belong to a board, organization, or association that keeps track of such suspensions and makes them available to the public. Take the time to look and confront the expert with what you find.

“I collapse like a deck of cards at trial.” There are experts, and then there are experts. There are those experts who look great on paper, but when they take the stand they wilt like a dandelion. You need to ask them how often they have testified at trial and the verdicts in those cases. Then ask for the attorneys who retained them in those cases and ask them how the expert performed on the stand.

“I have a bit of a temper.” Some experts are prima donnas. Some have short fuses. Some are temperamental. Some are impossible to get hold of. You need to spend some time with your expert and gauge his personality. Is he going to be easy to work with, or does he have an ego, personality, or character flaw with which you will have to contend? Ask for references of other lawyers who have retained him and ask them how easy (or difficult) this expert was to work with.

“My opinions have changed.” Your expert may have already addressed the very issue central to your case in a prior case. In fact, he may have once held an opinion that is just the opposite of his opinion in your case. You need to ask him whether his opinions have changed or evolved and ask for the names of the cases where he tackled the same issue and get his report or deposition from that matter. Odds are opposing counsel is going to get his hands on that report or deposition.

“My opinions have been disqualified.” Find out if he has ever been the subject of a Daubert challenge, and if so, whether the challenge proved successful. Has a court ever limited or struck his opinions? Has a court ever stated he was unqualified? Make sure to do a Westlaw search to see if any appellate decisions have criticized the expert.

“I don’t think you’re going to like that article I wrote.” You hire experts because they are leaders in their fields. As experts, they often have been published and have taken positions in the articles they have written. You need to ensure those positions are not contrary to yours. Ask him what articles he has written on your topic, review them, and make sure they support, not undermine, you case.

“I cost a fortune.” On the front end, find out what the expert is going to cost. In fact, ask what he generally charges for cases such as yours. Be up front regarding what records you want him to review, what testing you want him to perform, whether you need a report, and when you need it. After you’re honest with him about what you want, press him to be honest with you about what his final bill will be. Clients hate big expert bills, and juries are suspicious of them.

Your expert is there to help your case, not undermine it, and nothing undermines your case more than an expert with a secret that affects his credentials or credibility. Take the time to ask the hard questions. You will be surprised how often you will come across an expert who is not what he seems to be and who can hurt your case with who he really is. A little legwork can help you avoid retaining such an expert and retain the right one for you, your client, and your case.

Francisco Ramos Jr. practices with Clarke Silverglate & Campbell in in Miami, Florida.

Note
“Ten Things Your Expert Neglected to Tell You” by Francisco Ramos, Jr., Litigation News Tips from the Trenches, http://www.abanet.org/litigation/litigationnews/trial_skills/. ©2009 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

 

 

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