By: David M. Brudney
Member of Laguna Strategic Advisors
I can list several reasons for why my solo consulting practice has survived more than three decades. In the beginning I was able to leverage skills I had honed as a sales and marketing manager and director with Hyatt, Westin and Marriott.
I found receptive hotel and restaurant owners and managers – mostly small, independent properties – who hired me to create hands-on marketing plans and provide sales training and mentoring for staff. Teaching classes in hotel and restaurant marketing at UCLA-Extension brought in some extra income and, more importantly, provided me with a market for additional clients.
Looking back, however, if it had not been for that very first expert witness assignment, I doubt seriously if my practice could have sustained the up-and-down business cycles of the ’80s, ‘90s and the 1st decade of the new millennium.
In short, those expert witness assignments – in legal circles also referred to as providing “litigation support” or “alternative dispute resolution” services – garnered both the longest-term engagements and the highest fees of all my professional services.
And I have been to the dance 25 times since that initial case – testifying before jury and bench trials, in federal and superior courts, as well as mediation and arbitration panels.
That expert witness work evolved – as I recall – from an invitation from the American Academy of Arbitration to become an arbitrator. I had no prior arbitration experience or training, but I became fascinated with the actual work and the opportunity to expand my work scope and revenue stream.
Much of that expert witness work at that time fell to senior management with the largest accounting firms, but when they became conflicted – due to having either the Plaintiffs or the Defendants as clients – the litigation teams began searching for independent, long-on-industry experience, professional consultants.
Here are a few expert witness tips:
1. When contacted as a potential expert witness candidate, request a copy of the legal complaint, review it carefully, tell counsel whether or not you can honestly support their position, and be sure and disclose any and all potential conflicts.
2. Whenever possible, request a paid consulting session with counsel – before you are officially hired and “named” – one in which you play devil’s advocate, giving every possible argument you can think of to support the other side’s case. After which, bill them for your time – whether you are hired or not.
3. Request a non-refundable retainer before you consent to being named in the proceedings. Expert witnesses once named forfeit any opportunity to be engaged by the other side and may never be paid anything despite the possibility of having helped in bringing about a settlement or, later on, a judge or jury award.
4. Just like military basic training, be prepared for multiple, sudden starts and stops.
5. Just when you are anticipating a long, well-paid engagement, don’t be surprised if both sides settle – suddenly.
6. Do right, but don’t write – a book you authored, a previously published article, a quote appearing in print, a speech or presentation delivered and recorded, may be used against your testimony by opposing counsel (who have done their research).
7. Once on the witness stand or previously in deposition, listen very carefully to questions asked by opposing counsel during cross-examination. Block out counsel’s appearance, facial expressions tone of voice, and inflection – – or even playing to the judge and/or jury – and visualize those questions written down on paper.
8. During deposition, keep in mind this event is more of a fishing expedition for opposing counsel. The other side will be trying hard to find something you say they can use against your client during trial. A good expert witness never wants to win the case for the other side by opinions given – unnecessarily – during deposition.
9. Prior to your depo date, rehearse these tried-and-true, accurate, direct responses to opposing counsel’s questions: 1) yes, 2) no, 3) I don’t know, 4) I don’t recall and 5) that wasn’t part of my work scope. Bottom line: although the depo is a legal proceeding and you will be under oath, nonetheless, opposing counsel will be trying to pry information from you that may discredit you later on the witness stand or by your unwittingly helping the other side win its case. Do not give in to the urge to expand on your responses or giving greater detail that has not been asked of you.
10. Always remember, too, that you are under oath both during depo and trial. There will be pressure brought on by a real sense of your wanting to help your client win.
I welcome LSA feedback on this or any other topics or issues found in my newsletter columns. Expert witness work is a very interesting and timely topic and there is much more we can discuss here on this page going forward. Also, I welcome any ideas or suggestions on future topics and issues. Email me @ david@davidbrudney.com or call me at 760-476-0830.