For over a decade, I have served as an Expert Witness on numerous lawsuits. Most of the cases I agree to take are related to my experience as a banking regulator and my experience involving corporate governance issues. My work in this area increased once I obtained the Certified Fraud Examiner (CFE) designation.
The following comments are intended to help those considering this type of work and/or are just a beginning. Looking back, I wish I had something like the following to help me. My initial work was based on many instances of learning on the job.
Let me say this right up front: This type of work is a combat sport, and you will incur some bruises and scars. You have few friends in a deposition or at a trial. Even the law firm that hired you is not your attorney. They are an advocate for their client’s positions. Their client is the one paying for their time. You are hired for your particular knowledge to help them with their case. While they can assist you in a deposition or at trial by objecting to specific questions or issues, they are not there to protect you and/or your interest. This is critical – you must remember this.
My background – I did have some knowledge of this type of work when I was deposed numerous times while working as a federal bank examiner. My work on these cases usually involved my direct oversight of several financial institutions I was responsible for supervising and regulating. Technically, I was designated as a “fact” witness or expert due to my first-hand experience in regulatory matters. While these proceedings exposed me to the legal workings of this work, they did not fully prepare me for what I would experience as an “expert” witness.
Let me start by saying there are two types of experts. The first is a “consulting” expert, and the demands placed on this type of expert, while still taxing, are not nearly the same as a “testifying” expert. A consulting expert generally does not have to produce a written report. This expert primarily advises the attorney on technical issues involving the case. A testifying expert is required to produce a written report. This report is prepared on the relevant issues affecting the case you are working on and is based on the facts of the case. These facts are based on pleadings, interrogatories (questions), depositions of others, and other miscellaneous information from the law firm that hired you. This report will be reviewed and dissected by others.
My advice – the first thing is to know your limits. As they say, location, location, and location are the three most essential things for consideration in real estate. In litigation work, the most crucial issue is – to know your limits, know your limits, know your limits. This is a straightforward concept to remember. Only take a case where you have the background and experience to help. You will be exposed at some point if you genuinely do not know the subject matter in which you were hired. There is no faking this; some very smart people will expose you.
In addition to knowing your limits, another piece of advice is to be prepared. There is no substitute for preparation and the long hours that go into being fully prepared. Your credibility is on the line and at stake during these proceedings. It is always best to be prepared for other experts and opposing counsel rebuttals. The other side will be prepared even if you are not. You cannot delegate preparation. Remember – combat sport!
You may now ask what traits a seasoned professional needs to succeed in this combat sport. My take on this is as follows:
- Knowledge – you must know the subject matter. There is no substitute for experience in your chosen field;
- Trustworthiness – you have to come across as credible. You have to help convince a jury or judge to understand a topic that most laypeople do not fully grasp;
- Confidence – you should feel confident in what you say and advocate. Your ability to communicate your position is important – I am referring to both verbal and non-verbal – you are a teacher helping them understand and ultimately support your conclusions;
- Relatability – you should not come across as cold and/or arrogant. Don’t be afraid to smile and make your opinions easy to understand; always look at the person questioning you. It always helps me to remember that I know more about the subject matter I am testifying on than anyone in the room; and
- Perspective – maintain a reasonable perspective on what you are doing. You are not performing a life-saving surgery or finding the cure for the next virus. You are most likely not providing something the world has not seen before.
Conclusion
This type of work is challenging and can be fun and profitable. I always look at it as a personal challenge. I take the attitude that I am sparring with someone who disagrees with me, and my task is to maintain the strength of my convictions; however, you will most likely not win every battle if you do this long enough.
One last thought – a very wise attorney once told me before a deposition. He said my part of this case was like a pizza sliced into eight pieces. My part consisted of one piece of the pie and a need to stay focused on what was on my plate.
If I get some thoughtful feedback on this, I will follow up with additional suggestions for writing a report. Thanks!
Prepared – December 2022 – Terry L. Stroud
