Under Oath

The lure of expert witness work can be strong.

The pay is good, with some charging hourly rates that rival an entry-level attorney’s. The job itself is interesting and can involve issues of hydraulic or structural design, construction techniques, safety or other areas.

And there are even some of the nail-biting moments seen in courtroom dramas, with attorneys trying to bully the witness and the savvy expert holding his or her ground and getting in some good one-liners.

But the reason it pays so well is that few are truly qualified. In addition to stellar design and construction credentials, expert-witness work requires a certain personality. The professional can’t be intimidated by the process, and has to have patience with the antics that take place. Courtroom scenes are often fueled by tenacious and aggressive attorneys whose sole objective is to discredit an expert from the opposing side.

“You find yourself up against some very determined opposition who is willing to say anything that whoever hired him wants him to say,” says David Morrill, president of Pool Resolution Consulting Inc. in Glendora, Calif., and former CEO of California Pools. “You know [what they’re saying] is not true and you’re trying to prove your point, but [they] are shooting at you and trying to discredit you. It can be very disconcerting,”

Expert witnesses also must have a strong stomach. Cases involving workmanship defects can be fairly tame, but these specialists also are called into cases involving injuries and death. They sometimes are confronted with painful photos of drowning or diving-accident victims, not to mention the grief-stricken left in their wake.

“When you actually end up in trial, you’re there with the grieving parties who have lost a child,” Morrill says. “Of course, the opposition is doing everything they can to make it look like it was their fault [for exercising] poor supervision or not having a daughter who knew how to swim. Those are hard to deal with.”

For most jobs, an expert witness will be required to write a report, so they must be competent and confident in their skills there.

Then there is the tedium. Leading to the more dramatic moments is a lot of reading of depositions and reports.

“[Attorneys are] afraid to get accused of filtering, so they send you every piece of paper that they’ve received,” says Rick English, owner of San Diego-based English Pool Consulting. “So you may get the same piece of paper — let’s say a permit — in five different packets. There are some times where you’ll spend two or three days out of a week just reading documents, and you have to read them all.”

And though the pay is good, it isn’t quick. As with commercial contractors, expert witnesses often must wait weeks for compensation.

For those who think they can fit the bill, veteran expert witnesses offer several tips for making the work more successful.

Credibility

Credibility is an expert witness’s bread and butter, and it must be protected. Opposing counsel will do anything they can to undermine it which, if successful, not only hurts a case, but the expert’s long-term prospects. So they must do certain things to protect credibility.

Don’t specialize. Expert witnesses are human beings, so they may accumulate more knowledge in certain areas or gain sympathies for certain types of parties. As a result, it may be tempting to focus on working for plaintiffs or defendants. But doing this can undermine credibility.

“They’ll hold that against you in deposition and trial,” English says. “They’ll say, ‘You spend your life defending pool contractors’ … and make you look bad.”

Veterans try to maintain a nearly 50-50 mix of plaintiff and defendant clients. When approached by both sides of a case, English has a simple rule. “It’s first come, first served,” he says. “The job theoretically should be the same no matter who you work for — your evaluation should be the same either way. If the pump doesn’t work, the pump doesn’t work, whether you’re working for the defense or plaintiff.”

Stay true to beliefs. A credible expert witness does not tailor his or her convictions to suit the client. An expert who, when working for a plaintiff, says isolation fencing should be required shouldn’t reverse that claim when testifying for a defendant. Any attorney worth his or her salt will extensively research each expert witness, reading depositions from previous cases in search of just such contradictions.

“They will go back and drag out all transcripts from every case that you’ve been in, and they’ll search those in detail to see if you’ve said something in one case that will discredit your opinion in this one,” Morrill says.

This doesn’t mean one should prescribe the same thing for every case. Maybe in a given instance an expert will report that the steel reinforcement should have been set apart 12 inches on center, while in other cases they’ll say wider spacing would have sufficed. Just be ready to explain the differences.

To become as bulletproof as possible, an expert witness should know his or her own beliefs and the principles underlying them, and hold true.

Clean up language. Nobody expects an expert witness to compete with attorneys when it comes to eloquence. However, verbal ticks, hesitation and awkwardness could be seen as a lack of confidence, or worse, a lack of education and credentials.

“They will read [the deposition] back to you,” says Skip Phillips, president of Questar Pools & Spas in Escondido, Calif., and a founder of Genesis. “If it’s full of ‘uh’ and ‘and’ and ‘I’m not sure’ — even though it might be normal conversation for you — it really forces you to reflect on how you communicate.”

Turn work down. Even experts with 20-plus years under their belts will turn down a job when it doesn’t completely match their specialty.

“You should see some of the crazy requests I get,” says Alison Osinski, president of Aquatic Consulting Services in San Diego. “They say, ‘That’s sort of what you do,’ and I say, ‘No, it isn’t.’”

Other times, veteran experts will turn down cases they believe to be baseless.

“I learned early on I don’t want to be trying to support a position that’s unsupportable,” Morrill says.

Profitability

Expert-witness work is like building, designing or maintaining pools and spas in that the task involves a product that can’t be repossessed, and customers will sometimes try to welch on the deal. Here, veterans offer advice for making sure expert-witness work is profitable.

Charge upfront. It isn’t done often, but sometimes an attorney doesn’t plan to use a particular expert witness, but also wants to make sure the opposition doesn’t either. Thus, they will sometimes hire an expert, then not utilize him or her. Other times, an attorney will count on the rule that once an expert has learned about one side’s case, he or she is essentially tainted and can’t be used by the other party. So a lawyer might pretend to solicit an expert’s services, only to purposely divulge too much information, thus keeping that witness out of the proceedings.

In still other instances, an attorney may only use a little bit of an expert witness’s time before the case is settled. If that expert’s name carries enough heft, the settlement could have been a direct result of his or her name being on the case. That’s a success, yes, but a witness who bills by the hour isn’t going to collect proportionately to his or her influence on the case.

To ensure profitability in these situations, expert witnesses should charge an adequate retainer and/or an “open book fee.” Retainers can run into the hundreds or even thousands of dollars. An “open book fee” is a set amount of money that the clients must pay just to attach an expert witness’s name to the case.

In addition, experts should have the attorneys’ office pay for travel, hotel and any other expenses that must be taken care of in advance. This reduces the need for collection and alleviates bloated credit card bills at the end of the month.

Bill regularly — and strategically. Attorneys sometimes fall behind in their bills, but expert witnesses can use certain strategies to make this more difficult. Osinski, for instance, bills all of her clients monthly.

“Too many experts hate the paperwork part of being in business, but if you don’t do it and you let the bills get too high, then [the clients] don’t pay them because they’re too high,” Osinski says. “So I prefer monthly, regular ongoing billing. And then if they don’t pay you, then you don’t do any more work.”

Osinski also makes sure to bill before a big event, such as a deposition or trial testimony.

“At least that way if they stiff you at the end, it’s not that much,” she says. “That often forces them to pay. I get checks all the time in overnight mail the day before a deposition, because I make it clear I’m not going to continue working if they’re not paying me for work on the case.”