Expert Witness Blog

In 14 Rules For Working With An Expert Economist, expert witness Dr. Jerome M. Staller offers "rules" to follow that will help your economics expert witness do the best job he or she can for you and your client.

Never cross examine the opposing expert in deposition. Instead, inquire and learn. A deposition should not a warm-up for trial: You want to learn as much as possible and not tip your hand. Aggressive questioning during depositions is almost always counterproductive

Never hide information from your expert. Chances are, whatever facts you withhold from your expert will be known to the opposing side, which could lead to devastating cross.

Legal professionals who visit the JurisPro Expert Witness Directory will soon be able to view video clips of expert witnesses. Attorneys have asked to have video clips of our clients, and JurisPro will be providing them to legal professionals through its Web site. This is another way that JurisPro is clearly conveying the qualifications of its clients.

If you are a JurisPro client, the easiest way to have your video clip made known to legal professionals through JurisPro is to upload the clip to Google video. Once you have uploaded it, then email the link to info@jurispro.com. JurisPro will then link your video with your profile.

Alternatively, you may send a copy of the video clip on a DVD to:

JurisPro, Inc.

Attention: Member Services

703 Pier Ave., Ste. B213

Hermosa Beach, CA 90254

The video clip should be no more than 5 minutes in length. It is suggested that the video be a short description of your services, an excerpt from a video deposition, or a news clip.

If you have questions, please contact Karen Olson at 888-818-9444 or email her at Karen@JurisPro.com.

Clients who have listed their qualifications as an expert witness with the JurisPro Expert Witness Directory are now accessible through Sidley & Austin, the #5 law firm in the United States as ranked by AMLaw.

"Through JurisPro Law Librarian Karen Olson's efforts, JurisPro's clients are now at the fingertips of tens of thousands of attorneys who practice at some of the most prestigious law firms in the United States," said attorney Jim Robinson of JurisPro. "JurisPro's clients can now be directly contacted through the internal network of 12 of the top 20 law firms in the United States, and 35 of the top 100."

Sidley Austin diversified global practice encompasses the spectrum of corporate, transactional, litigation and regulatory matters. Their practice areas include: litigation, business, healthcare, intellectual property, real estate, products liability, labor and environmental, to name just a few.

Expert Communications provides expert witness training tools and creates marketing plans, materials, and websites for expert witnesses. You can sign up for their free email newsletter, Expert News, with tips, techniques, and information unique to the needs of expert consultants, by clicking here: Expert Communications Newsletter.

One of their most popular resources is the CD and transcript of a presentation by attorney Lee Gunn, "How to Be Picked, But Not Picked Apart," in which he explains:

- How attorneys pick experts

- What attorneys avoid when choosing experts

- How plaintiff and defense attorneys differ

- The worst thing an expert can do that will get you blacklisted

- What makes an expert stand out and get referrals (a simple thing most experts miss!)

You can also learn about the unique nature of marketing expert witness services from the founder of Expert Communications, Rosalie Hamilton, in her book, The Expert Witness Marketing Book

Thinking about becoming an expert witness? A logical first step is to figure out your area of expertise. Slate.com writes:

According to the Federal Rules of Evidence, an expert witness can be anyone with special "knowledge, skill, experience, training, or education." An expert can testify under the following conditions: The testimony must be based on sufficient facts or data; the testimony must be the product of reliable principles and methods; and the witness must have applied the principles and methods reliably to the facts of the case. In general, expert witnesses are called in when "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue."

Always keep in mind that an expert witness must pass the Daubert test. Trial judges evaluate expert witnesses to determine whether their testimony is relevant and reliable. You must demonstrate that the evidence you present as an expert fits the facts of the case and your conclusions were derived from scientific methods.

Your expert witness article should be geared to the attorney who would possibly hire you. In writing for your target market, remember, attorneys are generally impatient, and want usable information that is easy to digest. Therefore, the scope of the article should be narrow with a clear focus, written in a straightforward and clear manner. The style should be as non-technical as possible. Short paragraphs and sentences are usually preferred. Short subheads should be used to break the copy in longer articles.

Prior to submission, have someone competent proof read your article. No matter how much knowledge you have, the article will be rejected if it is poorly written. Indeed, if writing is not your forte’, consider having a co-writer (or even a ghost writer) help to convey your knowledge about the subject matter.

Prior to submitting your expert witness article, learn what types of articles are generally accepted by editor. Request a copy of the publication be sent to you, and read the articles that were previously published. You might want to call and speak to the editor directly before submitting your article. Ask the editor what he or she looks for when reviewing submitted articles. This will aid in writing your article in a format and style that is most acceptable to the editor.

Know the formatting guidelines for submission. Many bar association’s websites contain detailed format guidelines for articles. For example, the Texas Bar Journal requires all articles be double spaced. In contrast, The Wyoming Lawyer wants single spaced articles using 12-point Times font. Some publications want the articles submitted on paper – others request it electronically. A few minutes of research will prevent your article from being rejected for formatting reasons.

When writing your expert witness article, be aware of themes and publication calendars. For example, the Defense Research Institute traditionally uses “product liability” as its theme for its December issue of the “For the Defense.” Experts with an article in this magazine would have their information circulated to over 30,000 defense attorneys.

Your article could also be published on legal websites. For example, the Law Librarians Research Exchange (www.llrx.com) accepts articles and sends out emails to legal professionals about those articles. Another idea is to identify attorneys in your subject area (by looking up their practice area on the Internet), and sending to them your article along with your contact information, with a note stating simply: “This article may be of interest to you. Please contact me if I can ever be of service to you.”

There is a wide array of publications that might publish your expert witness article. Nationally, some examples include “Trial Magazine,” “The National Law Journal,” “The ABA Journal,” and “Lawyer’s Weekly.” On the state level, there are legal magazines such as “Nevada Lawyer,” “Minnesota Lawyer,” and “New York Law Journal.” In addition, virtually every state bar association has a legal newspaper or magazine. For example, you could reach attorneys in California through the “California Bar Journal” or trial attorneys on the East Coast through the New York Trial Lawyers Association’s “Bill of Particulars.” Most state bar associations also have “sections” (such as litigation, real estate, tax, and employment, to name a few) that have newsletters or legal publication where your article could be published. Also, there are literally hundreds of “specialty” bar associations, such as the “National Association of Environmental Law Societies” and “Criminal Bar Association.” Searching on the Internet for a bar association related to your expertise could lead you directly to your target market.

Another approach is to write your article on how to cross examine the opposing expert in your field. Many such articles are published in legal magazines. In this type of article, you could give advice on the following questions:

• What questions should be asked that will open doors to more information, or close doors on the opposing expert’s opinion on a particular issue?
• How can an attorney ferret out information from an opposing expert? What may an opposing expert be hiding?
• Are there certain scientific methods that are generally used by experts in this field? Are there different methodologies that could be used?
• Are there standards in your industry that an expert should be aware of?
• What documents should be used in cross examination?
• Are their certain questions that you know are difficult for an opposing expert to answer?
• What traps can be set for the unskilled opposing expert?

Providing answers to these types of questions will help get your article published, and attract attorneys to you.

Writing an article is one of the best educational marketing tools available to you as an expert witness. In deciding what topic about which to write, answer questions such as these in your article:

• What are the key issues in your field, and how should an expert be able to address them?
• What should an attorney know when they have a case in this area?
• What things should be sought in discovery? What documents or records should be requested?
• Are there chain-of-custody issues? Sequencing issues? Scope of work issues?
• What standards of care should be used?
• What potential defendants should be identified?

In addition, make it easy for attorneys to know what questions to ask when retaining an expert, and provide information in your article that will lead them to contacting you (without making direct references to yourself). Some questions you could provide answers to include:

• Are their specific experiences an expert in your field should have?
• Is there specialized training the expert should have in this area?
• Are there specific organizations to which the expert should belong?
• Are there certain designation or certificates an expert should have?
• Should the expert have published in this area?
• Are there “specialist” designations in your field of which an attorney should know?
• How is an expert in your field licensed? Is the license good for all 50 states? Are there a certain number of years of education one must complete?
• Are there common misconceptions in your field? For example, some attorneys might not realize that a chiropractor is not necessarily a medical doctor.
• What should competent experts in your field be able to do? Site inspections? Examinations? Create exhibits? Record review?
• What type of expert should an attorney avoid?

Attorneys will likely save such articles that answer these questions, and use them for future reference.

If you are an expert witness writing an article, it is imperative that you give the attorney something of substance. As you write your article, continually ask, “Would this information be helpful to an attorney who had a case in this area?” If you are not sure, ask an attorney to provide feedback. A managing editor of a large legal publication stated: “We do not accept sales pieces. We want substance. I advise authors to submit something that will be valuable to readers who want to know more about a particular subject matter.”

Your article should not be self promotion. Do not talk about your qualifications directly, and do not use the word “I” or “me.” Instead, demonstrate your knowledge by authoritatively discussing issues involved with your area of expertise. Don’t tell the attorney you are the expert – show them you are by competently discussing the subject matter.

As an expert witness, one of the best ways to get known to a large number of attorneys is to demonstrate your expertise through a well written article. This type of “educational marketing” is also one of the most cost efficient marketing avenues.

Why Writing Articles is Important

Attorneys are only paid when they are billing a client for legal work. Therefore, most attorneys do not take the time to learn what questions to ask before retaining an expert. Make it easy for attorneys. Inform them what they should be looking for. When you help attorneys understand your area of expertise, you are leading the attorney to contacting you when they receive a case in your field.

Articles have a desired “stickiness” to them – attorneys hang onto them. It is common for attorneys to save articles that are helpful to their practice, and to make copies for other associates. Partners often make copies of the articles, and pass them down to younger associates. Attorneys will often take their file of such articles when they change firms. Make sure the attorney takes your information with him or her by writing a valuable article.

Continue reading "Write an Article to Improve Your Expert Witness Marketing - Part 1" »

Expert witness marketing is a conservative investment. It is not an instant gratifier. As marketing expert Jay Levinson states, “Don’t expect marketing to suddenly double your sales. Although this has happened, it is unusual. Recognizing this, you’ll feel good about making a conservative investment in marketing the next year, and the year after that. If you expect more from marketing, chances are you’ll be disappointed. If you expect only that, chances are you’ll be gratified. And successful.” If you want to be successful as an expert witness, will you truly save money by not marketing? You will in the way that stopping your wristwatch saves time.

Your goal in marketing is to consistently educate legal professionals about your qualifications and abilities to position yourself in their mind as the expert witness to contact when a case falls within your expertise. There are an endless number of ways to market your qualifications. The key to expert witness marketing is commitment. Once you have chosen your marketing tactics, stay consistent. Consistency breeds familiarity with attorneys, familiarity breeds confidence in your abilities, and confidence will lead to you being retained in more cases. Do not drop out of the public eye for long periods of time. Remember, attorneys hire expert witnesses based on the cases that come into their office. Just because the attorney does not hire you today does not mean that he or she will not hire you tomorrow.

When one looks at the characteristics of attorneys, it becomes obvious that they do not spend a great deal of time finding the "best" expert witness:

1. Attorneys are middle persons who are controlled by the client. They will advocate the expert witness to the client, who ultimately pays for the services.

2. Attorneys are self-interested, in that they are concerned with how an expert appears to the decision maker (and you should be too).

3. They are impatient in that they want information now.

4. They are less knowledgeable of the subject matter of your expertise than you are.

5. They are sometimes lazy. Being lazy is neither a good nor a bad trait. Being lazy can be manifested by getting things done faster and more efficiently.

Attorneys make a profession out of finding evidence that supports their view, disregarding or explaining away any contrary evidence, and advocating their decision. Decisions are not long deliberated; they are quickly reached and then justified. Expert retention is no different. Attorneys choose one expert over another because they feel comfortable with that expert witness. That’s it. Thus, conveying quality to an attorney can be as critical to satisfaction as actually delivering quality. The most important question an expert can ask is this: If an attorney knew about my qualifications and abilities, and was looking for a consultant with my expertise, would that attorney hire me? If your answer is yes, then you must make yourself known to attorneys, and not rely on attorneys themselves to somehow find out about you.

A number of expert witnesses do not market because they believe that attorneys market their qualifications for them to the legal community by word of mouth. With everything an attorney does all day in dealing with the tremendous expectations from clients and the stress of billable hours, do you really want to rely on attorneys to market for you? Do you want your business development to be out of your control and in the hands of lawyers? Do you think attorneys have your curriculum vitae at their fingertips to discuss your qualifications? Do you think attorneys have the time to convey your qualifications? Being a lawyer is daily, fast-paced drudgery in a precarious profession. Lawyers have enough on their plate without having to concern themselves with marketing your services. A wise expert realizes that attorneys only make money when they are working on items they can bill to a client; marketing your services is not a billable event. If you want to maximize your profits as an expert witness, do not rely on attorneys to make your qualifications known by word of mouth.

Some expert witnesses believe that their professionalism is affected if they make it known that they are available to be retained as an expert witness. For example, many fear embarrassment or a loss of credibility when it is revealed on cross-examination that they market their services.

In reality, the judge and jury just don't care about your marketing. On cross-examination, attorneys will not risk alienating a jury by delving deeply into your marketing, and judges frown upon such a line of questioning. Good cross-examination is short and hits hard. Attorneys are going to concentrate on two things in their limited amount of time to cross-examine an expert witness: the fact that you are a paid witness, and any inconsistencies in your prior testimony. Even these issues can be quickly defused on direct examination. You, of course, can point out that you are paid for your time, and not for your testimony. Lawyers are simply not going to gain ground with a jury by pointing out that you make your services available to the legal community through marketing.

This first myth is only true if you, as an expert witness, do not want to get retained. Out of sight is out of mind and, for the expert witness, out of work. Being an expert witness necessarily means that you market yourself. When the attorney hires an expert, he or she is doing so on a promise. The attorney cannot see a potentially effective trial presentation. The attorney searches for what he can see now. That attorney wants to know if you are available, and seeks information about your qualifications, experience, and abilities. Thus, expert witness marketing is everything a professional does on a regular basis in the process to educate and demonstrate to the legal community why that expert should be retained. The key words are everything and regular.

Two very good reasons why you should market your services:

1) Legal professionals cannot hire you if they don’t know about you.
2) Your competitors are marketing.

Continue reading "Expert Witness Marketing Myth #1 - Marketing is Unnecessary" »

"Honesty is the best policy" is a cliche, but it is the most important element in the attorney-consultant relationship. It is much better to reveal a shortcoming to retaining counsel than to try to bury the facts. With the variety of online tools available, even the most casual of legal researchers can unearth information about an expert witness' background, qualifications, and expertise.

There was a story about an expert who was retained on a high profile case. The attorney had given the expert witness the usual admonition about disclosing any potentially damaging information to the attorney before the depositoin. The expert said that there was nothing to hide.

At the expert's deposition, the opposing counsel started with the