I was recently a guest on a podcast called Discussions at the Round Table. The podcast is put on by the Round Table Group. The Group is a premier expert referral service. It locates, vetts, and engages expert witnesses in complex litigation matters. I was asked to talk about my work as a practicing lawyer with experts over the years.
For most of my career, I was a national mass tort defense lawyer. I had the chance to work with all sorts of experts in all types of cases and jurisdictions. Some of these experts were better, and some were worse. And the fact that the rules concerning what must be disclosed and how detailed expert reports must be sometimes made working with experts complicated.
But in preparing for the podcast, I thought about some best practices to follow by experts and the lawyers working with them. I came up with ten practices that facilitate a good working relationship and, of course, lead to a better result. Here they are:
- The best experts work with the lawyer and the facts and try to help. They identify problems in the case and with what they must opine. But good experts look for solutions instead of just leaving the problems for the lawyer to figure out how to solve on their own.
- The best experts and, for that matter, the best lawyers, are communicative and understandable. They don’t use jargon or fancy words. This trait works both ways, by the way. The lawyer needs to communicate with the expert without using legal jargon or fancy words as well. No latin. Please.
- The best experts and, of course, the best lawyers, are likable. They are interesting. They are the kind of people you want to go to dinner or have a beer with. People–judges and juries–sense this trait and will believe the expert is more credible as a result.
- Both good experts and lawyers understand that they need to tell a story to juries, judges, and the other side. Simply put, they need to be good storytellers. In addition, part of being a good storyteller in today’s world means keeping abreast of technology and using persuasive demonstrative aids. (Avoid death by powerpoint, for example). We are all used to having stories told with technological aids. We expect it; stories not told in the expected way with expected tools fall on deaf ears.
Stories not told in the expected way with expected tools fall on deaf ears.
- A good expert always asks the “so what” question about facts and issues. In other words, an expert needs to assess the significance and importance of facts upon which they have been asked to render an opinion. The expert needs to ask about the impact of the opinions they are rendering. If the opinion has no “so what,” why render it?
- If you, as an expert, have to admit something that’s harmful to the cause, admit it. Don’t fight a battle you can’t win. A good expert anticipates problems and has a planned solution. See point one above.
- A good expert takes the time to generally understand litigation and litigation dynamics, and more specifically their role. That’s not to say an expert needs to think or act like a lawyer, which creates its own set of problems. But understanding how litigation works will help put all these best practices in place.
- Relatedly, the lawyer and expert must work as a team. Both should communicate their expectations to one another. Both need to respect the time pressures and deadlines they are each facing. The time to have a frank discussion about expectations and time frames is at the beginning of the relationship, not the night before a report is due.
- The expert needs to understand that their work is not exclusive to the courtroom. The expert needs to be credible to the other side, the lawyer’s clients, and sometimes other parties. The expert needs to understand that by being credible and persuasive, they make their lawyer look credible.
- Above all, the expert needs to be a team player. An expert who is arrogant or a prima donna will not be credible, believable, or likable to anyone, including the lawyer who hired them.
It really boils down to communication and credibility. Experts may be experts, but they are communicating to people who need to listen and understand what they are saying and the story they are telling.
And being a good person with integrity still goes a long way for all of us.