So You’ve Been Called as an Expert Witness?
What to Expect and How to Prepare
Speaker:
David T. Williams, PhD, PE, PH, CFM, CPESC, D.WRE
DTW and Associates, LLC
2
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
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So You Have Been Called as an Expert Witness?
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
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So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
David Williams
PhD, PE, PH, CFM, CPESC, D.WRE
President
DTW and Associates, LLC
5
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Now Hear This!
• This is not legal advice—it is a
lecture on general principles of
being an expert witness.
• For legal advice, see a lawyer
licensed in your jurisdiction.
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So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
So You’ve Been Called to be an Expert Witness?
Outline
• David’s Experience in Expert Testimony
• Scenarios to Ponder
• Close Encounters of the First Kind – Initial Inquiry
• Close Encounters of the Second Kind – Meetings
• Close Encounters of the Third Kind – Discovery and Affidavits
• Close Encounters of the Fourth Kind – Deposition and Trial
7
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
So You’ve Been Called to be an Expert Witness?
Outline
• General Comments on Depositions and Trials
• Discussion of Scenarios and Participant Responses
• Contract Considerations
• Example Contract
• Questions and Answers
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So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
The First Expert Witness in Court
Was a Water Resources Engineer!
• The earliest known use of an expert witness in English law
came in 1782, when a court that was hearing litigation
relating to the silting-up of Wells harbor in Norfolk, VA
accepted evidence from a leading civil engineer, John
Smeaton.
• This decision by the court to accept Smeaton's evidence is
widely cited as the root of modern rules on expert evidence.
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So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
David’s Experience in Expert Testimony
• Went to Trial – Three Cases
o Flooding Problems and Resulting Slope Failure, Unnamed Creek, Los
Angeles, CA, for private client, for plaintiff
o Flooding Potential and Analysis of Coconut Grove, Kailua, Oahu, HI, for
private client, for plaintiff
o San Luis Obispo Creek Flooding, San Luis Obispo, CA, for private client,
for defendant
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So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Experience in Expert Testimony
• Went to Arbitration – Four Cases
o Scour Evaluation of Grading Plan Changes for Cyrus Wash, for Kern
County, CA, for plaintiff
o Flood Problems at Carlton Oaks Country Club, Santee, CA, for private
client, for plaintiff
o Pecos Road Pipeline Scour, Phoenix, AZ, for El Paso Natural Gas
Company, for plaintiff
o San Diego Creek Revetment Failure, Irvine, CA, for private client, for
plaintiff
11
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Experience in Expert Testimony
• Other Side Withdrew – Five Cases
o Subdivision Flooding, for City of Reno, NV, for defendant
o Deposition of Erosion Material at a Golf Course, San Marcos, CA, for
defendant
o Agua Fria River Streambank Scour Analyses, Phoenix, AZ, for Flood
Control District of Maricopa Co., AZ, for defendant
o Subdivision Flooding Problems and Floodplain Mapping Procedures,
Dayton, OH, for private client, for defendant
o Murrieta Creek Flooding, Riverside County, CA, for Riverside Co. Flood
Control District, for defendant
12
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Experience in Expert Testimony
• Settled Out of Court – Seven cases
o U.S. Forest Service vs. State of ID,
water rights issues, through the
Dept. of Justice , for plaintiff
o Subdivision Flooding Problems,
Waialae Iki V, Oahu, HI, for
private client, for plaintiff
o Environmental Protection Agency
through the Dept. of Justice vs.
unnamed defendant, HI, for plaintiff
o Alpine Mobile Home Park
Flooding, Alpine, CA, for
private client, for defendant
o River Effects of Sand Mining
Operations, San Luis Rey River, CA,
for private client, for defendant
o Desert Greenbelt, Scottsdale,
AZ, for private client, for
defendant
o Erosion and Drainage, Newport
Beach, CA, for private client, for
defendant
13
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Experience in Expert Testimony
• Non-Judicial Expert Testimony/Opinion – Five Cases
o Analysis of Milltown Dam Removal and Potential Deposition at
Thompson Falls Reservoir, MT, for Pennsylvania Power and Light
o FERC relicensing, NC, for Alcoa Power Generating Corporation
o Baker River FERC relicensing, WA, for Puget Sound Energy
o Blackfoot and Clark Fork River Restoration Plan, MT, for unnamed
client
o Evaluation of Pipeline Rupture, Arroyo Pasajero, CA, for unnamed
client
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So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Summary of Experience
• Went to Trial - 2 Plaintiffs, 1 Defendant
• Went to Arbitration - 4 Plaintiffs
• Other Side Withdrew - 5 Defendants
• Settled Out of Court – 3 Plaintiffs, 4 Defendants
• Summary
o 9 Plaintiffs, 10 Defendants
o 3 out of 19 went to trial – about 16%
15
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Some Scenarios to Ponder
• The following scenarios are presented before David’s wise
advise is presented.
• After the presentation, we will go over them again and the
audience will be encouraged to present their answers and the
reasons based upon David’s observations.
• We will also discuss other opinions for those that have been
expert witnesses, if there are any.
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So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Scenario I
• The lawyer asks the expert to use a
different word/phrase in his/her
report.
• The expert is reluctant but the
lawyer insists.
• What should the expert do?
17
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Scenario II
• During trial/deposition, the
lawyer poses an open type of
question that could be
interpreted different ways.
• How is the expert to respond?
18
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Scenario III
• An prospective expert is
called on the phone to listen
to the lawyer's case and
asked to make an opinion
right there.
• What should the expert do?
19
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Scenario IV
• The expert is a friend of the other
side's expert and knows that he/she
had a professional licensing
disciplinary action that was settled
with a fine.
• Should he/she tell the lawyer?
20
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Scenario V
• A lawyer who has a hydraulic
expert asks him to form an
opinion on a hydrologic issue.
• Although the expert has an
opinion and is sure he/she is
right, what should he/she do?
21
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Scenario VI
• An expert is on the stand and the
opposing attorney starts making what
he/she considers personal attacks on
his/her integrity and qualifications.
• What should he/she do?
22
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Scenario VII
• An expert is promised a big
bonus if his/her side wins.
• Should the expert do or say
anything?
23
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Close Encounters of the First Kind
• Watch Out for Pre-emptive Strikes
o Attorneys may contact you and try to get you on retainer to take you
“out of the game”.
o Ask who else is on their team and if they will be covering the same
expertise you would be.
• Briefly Get Case Background
o Are they in the right or wrong? Can you enthusiastically support their
position? Who are their other experts? Any conflicts?
o Do not give an opinion even if you are declining the case.
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So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Close Encounters of the Second Kind
• Don’t take the case if you feel that they are wrong in their
assertions but may still take case if they have done something
wrong but should not take all the blame.
• If you see a possibility you will take the case, meet with the
attorney first before committing (initially at your own expense – why?).
• Resume
o Update your resume.
o Take out all embellishments.
o Submit a short summary and full resume to your attorney to give out
as appropriate.
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So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Close Encounters of the Second Kind
• Questions to ask yourself
o Are you comfortable with the lead attorney?
o Are the attorneys straight forth answering your questions?
o Can you work with their other experts?
o Can you keep emotions out of the case?
o Can you be objective about the case?
o Can you objectively deal with the other side’s experts?
26
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Close Encounters of the Third Kind: Discovery
• Discovery is the pre-trial phase in which each party, through civil
procedures, can request documents and other evidence from other
parties.
• You should work with the attorney to help in this process.
• As a designated expert witness, your emails or other correspondence is
discoverable, so make sure that preliminary opinions, personal
comments, strategies, etc. are not written down.
• Your publications and presentations are discoverable so make sure that
they are not in contradiction to your opinions in the case.
27
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Affidavits
• Affidavits are written declarations made under oath, usually certified by a
notary public
• You would normally be asked to write an affidavit stating your opinions on
the case and the reasons for your opinions.
• Make sure to put “Draft” on all preliminary affidavits.
• Your attorney will look at your drafts and make suggestions on
improvements.
• Don’t change your statements if you feel they are correct, even though
your attorney may ask you to “change/bend” them.
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So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Arbitration and Mediation
• Arbitration is used for the resolution of disputes outside the courts
• The case (or dispute) is conferred to one or more persons - the
"arbitrators”
• The “third party” reviews the evidence in the case and imposes a
decision that is legally binding and enforceable on both sides
• Another form of arbitration is mediation in which settlement
negotiation is facilitated by a neutral third party
• Mediations are not legally binding
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So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
General Comments on
Discovery and Affidavits
• Talk to or meet with the other experts on your side.
• Get a copy of everything that your client and the other experts on your side
presents under discovery that touches your area of expertise.
• If there are overlaps in expertise, decide who is the most competent on the
subject to write in their affidavit.
• Review each others draft affidavit for consistency between drafts.
• Make sure that your attorney understands the scientific and engineering
basis of your testimony before you present it.
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So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Comments for Time Up to Trial or Arbitration
• Don’t talk about the case to your colleagues
• Tell your staff that is working on the case not to talk about it to their
colleagues.
• Keep all information in one reasonably secure place.
• Be careful with emails – e.g., double check forwarding, cc:s, etc. to the
right people!
• Try to keep everything in your head and don’t write down notes if you
can – all is discoverable!
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So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Close Encounters of the Fourth Kind: Contact!
• Deposition is witness testimony given under oath and recorded by a court
reporter for use in court at a later date.
• It is usually taken at a mutually agreed upon location.
• The person being deposed (questioned) is the deponent.
• Attorneys from all sides can be in attendance and ask questions.
• The other side’s experts may be present and feed questions to the
attorney.
• You may be asked to do the same when your attorney deposes the other
side’s expert.
32
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Depositions
• Check draft deposition transcripts to reassure that your facts, assertions
and conclusions are correct.
• Copies of the deposition are made available to everyone after you have
made corrections to the transcripts.
• There are two types of objections by your attorney to the questions posed
to you:
o Privilege – it relates to information between attorney and client
o Object to the form of the question asked – note that this generally means your
attorney is warning you to be careful and allows your attorney to “caveat” the
answer later!
• If you need time to think, don’t feel shy in taking a breather to collect your
thoughts (e.g., bathroom, early lunch, need water, need to stretch).
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So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Depositions – General Comments
• Both side’s experts are generally deposed – try to get the other side’s
experts to be deposed first.
• You may be asked to help with questioning of the other side’s experts in
advanced to the their deposition.
• Information from each side’s experts’ depositions is often used to predict
the outcome of a trial and therefore the decision basis for a settlement or
continuation to trial.
• If the other side’s attorney ask you questions outside your area of
expertise, say that you have not been asked to address those topics.
34
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Depositions – Some Suggestions
• If you do not fully understand the
question, ask for it to be
repeated.
• If the question is ambiguous, ask
to repeat the questions using
different phrasing or words.
• If the question is still ambiguous,
rephrase it yourself so that you
can answer it with no
misinterpretation.
35
So You Have Been Called as an Expert Witness?
• Use short phrases, answer
directly to the question and do
not expound or give opinions
voluntarily.
• Give opinions only when directly
asked to and for specific topics .
• Don’t be evasive, but use every
opportunity to make your own
points.
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Depositions – Some More Suggestions
• If for the first time, practice with your attorney
• Critique what you will say and objectively imagine what the other side may
ask you and prepare a good honest answer.
• Read up on the other side’s experts to anticipate their questions.
• Take only the documents you will need for the deposition – they will enter in
the records what you bring.
• Have support documents handy and indexed so you can go straight to the
information.
36
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Trial!!
• Two types of trial – Jury and Bench (solely before a judge)
• This is serious stuff because usually, only 1 in 10 cases get to this point.
• Civil suits do not have to have unanimous decisions – e.g., for CA, you
need to have only 9 out of 12 on your side if a full jury.
• Remember that the judge and jury are not experts in your field, but they
are also not dumb.
• You are not allowed in the trial room when your case is in session.
37
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Trial!!
• If asked an unfair/misleading question, it is perfectly alright to use your
answer as an opportunity to fully explain your own position and opinions.
• If the attorney isn’t satisfied with your answer, it’s up to him/her to ask the
question in a way that makes sense.
• If the opposing attorney tries to limit your answer to a “yes or no”, and you
feel an explanation is necessary, ask “May I explain?”.
• Some judges will allow explanations by the witness, but if the judge stops
you from explaining, you will have alerted your own lawyer that this is an
area that needs follow-up with his questioning.
38
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Trial!! Some More Stuff
• Dress like a professional – don’t wear a Hawaii shirt unless you are in
Hawaii and a native; don’t wear a bolo tie in New Mexico unless that is
your natural way to dress. Otherwise, you will appear appeasing.
• Review the other experts’ and your depositions just before trial.
• Work with your attorney on your exhibits.
• Rehearse with your attorney.
• If the court takes a break during your testimony, use this time to talk to
your lawyer about any trouble spots that have come up.
39
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Trial!! Even More stuff
• Stay away from professional jargon but if you do use it, make
sure to define it.
• As presented in deposition section:
o If you do not fully understand the question, ask for it to be repeated.
o If the question is ambiguous, ask to repeat the questions using
different phrasing or words.
o If the question is still ambiguous, rephrase it yourself so that you can
answer it with no misinterpretation.
o Use short phrases, answer directly to the question and do not
expound or give opinions voluntarily.
o Give opinions only when directly asked to and for specific topics.
40
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
General Overall Comments
• I generally ask for double my usual fee for deposition and trial –
Why?
• Have a thick skin and don’t take things personally.
• Maintain your dignity at all times.
• If you are being treated disrespectfully, have your attorney step
in.
• Don’t argue with the other side’s attorney – that is your
attorney’s job.
• Become hard of hearing and have a weak bladder.
41
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
More General Overall Comments
• Don’t trash the other side’s experts – treat them with respect.
• Look at the jury (scan the people) or judge when answering
the question – not at their attorney (he is not the one to be
convinced).
• If there is a microphone, place it so that you can sit erect
while answering questions – don’t be a bobblehead!
• Answer in an audible and confident voice.
• You cannot be sued for your opinions, right or wrong, but you
can be sanctioned or have criminal charges if you make false
statements, forge documents, etc.
42
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Now, Let’s Go Over the
Scenarios Again!
43
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Scenario I
• The lawyer asks the expert to use a
different word/phrase in his/her
report.
• The expert is reluctant but the
lawyer insists.
• What should the expert do?
44
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
A Quick Poll…
The lawyer asks the expert to use a different word/phrase in
his/her report. The expert is reluctant but the lawyer insists.
What should the expert do?
a)
Do what the lawyer says since he is paying you.
b)
Refuse to do any further work with the lawyer.
c)
Comply as much as your ethics will allow you .
d)
Comply as long as the intent of your report is preserved.
45
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Scenario II
• During trial/deposition, the
lawyer poses an open type of
question that could be
interpreted different ways.
• How is the expert to respond?
46
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
A Quick Poll…
During trial/deposition, the lawyer poses an open type of
question that could be interpreted different ways. How is the
expert to respond?
a)
Ask for the question to be repeated.
b)
Wing it!
c)
Restate the question so you can answer the way you want.
d)
Tell the lawyer that the question cannot be answered intelligently.
47
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Scenario III
• An prospective expert is
called on the phone to listen
to the lawyer's case and
asked to make an opinion
right there.
• What should the expert do?
48
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
A Quick Poll…
An prospective expert is called on the phone to listen to the
lawyer's case and asked to make an opinion right there. What
should the expert do?
a)
Tell them if they have a good case or not.
b)
Ask for a commitment contract before you render an opinion.
c)
Decide if you want to take the case before you give your opinion.
d)
Decline giving any opinions at that time.
49
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Scenario IV
• The expert is a friend of the other
side's expert and knows that he/she
had a professional licensing
disciplinary action that was settled
with a fine.
• Should he/she tell the lawyer?
50
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
A Quick Poll…
The expert is a friend of the other side's expert and knows that
he/she had a professional licensing disciplinary action that was
settled with a fine. Should he/she tell the lawyer?
a)
Yes, the lawyer is entitled to all the information you have.
b)
Ask your lawyer if he/she has done their due diligence on the expert.
c)
No, since you do not want to disparage your friend.
51
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Scenario V
• A lawyer who has a hydraulic
expert asks him to form an
opinion on a hydrologic issue.
• Although the expert has an
opinion and is sure he/she is
right, what should he/she do?
52
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
A Quick Poll…
A lawyer who has a hydraulic expert asks him to form an opinion
on a hydrologic issue. Although the expert has an opinion and is
sure he/she is right, what should he/she do?
a)
Yes, the court is entitled to your opinion if you are competent to
answer the question.
b)
You should be as evasive as you can and dance around the answer.
c)
No, you should tell them that you are not an expert in hydrology.
d)
No, you should tell them that you were not asked to address
hydrologic issues.
53
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Scenario VI
• An expert is on the stand and the
opposing attorney starts making what
he/she considers personal attacks on
his/her integrity and qualifications.
• What should he/she do?
54
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
A Quick Poll…
An expert is on the stand and the opposing attorney starts making
what he/she considers personal attacks on his/her integrity and
qualifications. What should he/she do?
a)
Get indignant and tell the lawyer off.
b)
Tell the judge how you feel about it.
c)
Remind the lawyer about your qualifications and ask to be treated
with more respect.
d)
Look to your lawyer to handle this problem.
55
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Scenario VII
• An expert is promised a big
bonus if his/her side wins.
• Should the expert do or say
anything?
56
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
A Quick Poll…
An expert is promised a big bonus if his/her side wins. Should the
expert do or say anything?
a)
Refuse the offer since it is illegal.
b)
Negotiate the bonus based on the percentage of the award.
c)
Do not accept bonus money but ask for non-monetary incentives.
57
So You Have Been Called as an Expert Witness?
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Contract Considerations: General Comments
• In contracting for an expert, the attorney is acting as an agent for the client.
• It is the client (represented by the attorney) who remains ultimately
responsible for the expert’s fees and costs.
• Ethically, the attorney contacting or retaining an expert on behalf of a client is
personally (or their law firm) obligated to see that the expert is paid for
litigation-related services.
• An expert witness fee being paid is not contingent on an expert opinion being
produced.
• The compensation cannot be contingent upon the content of the expert's
testimony.
58
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Contract Considerations: Contents of Contract
• The scope of services to be performed by the expert
• The rate of compensation to be paid for the expert's services, including
whether the fee will vary depending upon the services rendered (e.g.,
research, examination, travel, testimony, etc.)
• Whether advance payments or retainers are required and, if so, under
what circumstances
• The handling of costs and expenses
• Cancellation terms and amounts
• The person or persons responsible for payment of those costs and fees
59
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Contract Considerations: Cancellations
• Important: Terms concerning cancellation of testimony (trial
and deposition) should be discussed and agreed upon in
advance and specified in the contract (e.g., who pays for nonrefundable airfare tickets?).
• An expert is entitled to prompt notification of cancellation
of testimony.
• Cancellation costs should be reasonably related to the
actual loss to the expert in terms of lost professional fees
and the impact on his or her practice, (tangible and intangible).
60
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Contract Considerations: Fees
• The amount of time spent, including review, reparation,
drafting reports, travel, or testimony
• The degree of experience, education, or skill required
• The amount of effort expended
• The uniqueness of the expert's qualifications
61
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Contract Considerations: Fees
• Income and hourly rate information of similar experts
• The amount of other professional fees lost
• The impact, if any, on the expert's practice because of
scheduling difficulties, other commitments, etc.
62
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Contract Considerations: Example Fee
Forensic Consulting Services............................... $???/Hour
Forensic Consulting Services.............................. $????/Day
• Service fees include forensic engineering, case research, data analysis,
product testing, facility or field evaluations, preparation of reports and
attorney technical briefings.
• Activities which extend beyond the normal 8 hours will be billed at the
hourly rate for the total hours actually worked.
• The daily rate is the minimum billing for out-of-time activities (or maybe 4 hours
minimum).
• Equipment expenses are not included in the consulting services rates.
• Minimum billing increment is? (say 15)-minutes per activity.
63
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Contract Considerations:
Example Fee Structure
Expert Witness Services .................................. $???/Hour
Expert Witness services fees include depositions and court appearances.
Litigation Retainer ........................................... $????/Case
A non-refundable retainer is due upon acceptance of the litigation activity.
Consulting services, expert witness services and expenses (travel, meals,
lodging and equipment expenses) are not included in the non-refundable
retainer and will be billed separately.
Travel Time........................................................ $???/Hour
64
So You Have Been Called as an Expert Witness?
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Contract Considerations:
Example Fee Structure
Hold-over Time .................................................... $????/Day
Hold-over time includes weekends, holidays, etc. when the consultant remains in
the distant (out-of-town) location at the request of the client
Meal, lodging and incidental expenses are in addition to the daily hold-over rate.
General Terms & Conditions
Travel Time: Fees listed are for locations within ?? miles of the (company) office
serving the activity
65
Locations outside this area are considered out-of-town and subject to travel
expenses, including per-diem and travel time
So You Have Been Called as an Expert Witness?
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Contract Considerations:
Example Fee Structure
• Overtime: Hourly rates stated above are for normal 8AM5PM, M-F.
• Hours worked outside of the normal work day, weekends and
holidays will be charged at ?? times the normal hourly rate.
66
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Example Contract
This agreement is entered into between Edward Expert, the consultant, and
Linda Lawyer, the client-attorney.
The purpose of this agreement is to procure the services of the consultant in
relation to the case of Hatfield v McCoy, Case No. PH-004432-DO, pending
before the Circuit Court for the County of Hazzard, State of Arkansas.
Mr. Expert shall provide services for the client-attorney as an independent
professional.
Payment to Mr. Expert is not dependent upon the findings which Mr. Expert
renders, nor on the outcome of any legal action, mediation, arbitration, or
the amount or terms of any settlement of the underlying legal cause, nor on
any contractual arrangement between the client-attorney and any other
person or party.
67
http://www.expertlaw.com/library/expert_witness/expert_contract_1.html
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Example Contract
Engagement Fee:
At the time of the execution of this agreement, the client-attorney
shall tender to Mr. Expert a non-refundable engagement fee in the
amount of ?? Thousand dollars ($??????).
Billings for services performed or expenses incurred shall be charged
against the engagement fee until such time as it is exhausted.
The client-attorney shall not identify Mr. Expert as either a testifying
or non-testifying expert until such time as the engagement fee has
been paid.
68
http://www.expertlaw.com/library/expert_witness/expert_contract_1.html
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Example Contract
Fees:
The fees for services provided by the consultant and his/her staff are as follows:
Consultant Fees:
Except as outlined herein, the client-attorney shall compensate Edward Expert at
the rate of $??? per hour for all tasks performed under this agreement, including
but not limited to analysis, calculations, conclusions, preparation of reports, and
necessary travel time. Note: travel time rate can differ from standard rate
Fees will be billed by the ??% of an hour, with a minimum charge for any discrete
task of ??% of an hour.
For testimony at deposition or trial, the client-attorney shall compensate Edward
Expert at the rate of $??? per hour, to be billed in hourly increments. This rate for
testimony shall apply both while Mr. Expert is waiting to give testimony, whether at
an office or court, and for time taken for breaks or meals, as well as for time spent
actually giving testimony.
69
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So You Have Been Called as an Expert Witness?
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Example Contract
Investigator Fees:
At times, Mr. Expert may require the assistance of his investigator, Samuel Sleuth. The
client-attorney shall compensate Edward Expert at the rate of $??? per hour for
services performed by Samuel Sleuth, with fees to be billed by the ??% of an hour.
Graphic Design and Exhibit Preparation:
The client-attorney shall compensate Mr. Expert for time spent preparing graphics or
exhibits at the rate of $??? per hour, regardless of who performs the associated
services. In the event that Mr. Expert outsources the preparation of graphics or
exhibits, the client-attorney shall reimburse Mr. Expert for the actual cost of the
services, plus a ?? percent (??%) handling fee; however, the fee for outsourced
services shall not exceed the rate of $??? per hour without the approval of the clientattorney. The fees outlined in this paragraph do not include the cost of materials.
70
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Example Contract
Expenses incurred by Edward Expert shall be reimbursed by the clientattorney as follows:
Travel by Car:
?? cents per mile
Travel by Air or Train:
The actual cost of the round-trip ticket, plus a ?? percent (??%) handling
fee.
Expenses, at cost, associated with photography, reproduction of documents
and photographs, preparation of exhibits, storage of materials or evidence,
and other reasonable expenditures shall be reimbursed at market rates.
71
http://www.expertlaw.com/library/expert_witness/expert_contract_1.html
So You Have Been Called as an Expert Witness?
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Example Contract
Lodging:
For any travel of more than ?? miles from Mr. Expert's office, Mr. Expert shall
be reimbursed for the cost of meals and lodging, plus a ?? percent (??%)
handling fee.
Car Rental:
In the event of travel beyond the local area, Mr. Expert shall be reimbursed
for the cost of a mid-sized rental car and any associated expenses, plus a ??
percent (??%) handling fee.
72
http://www.expertlaw.com/library/expert_witness/expert_contract_1.html
So You Have Been Called as an Expert Witness?
#ExpertWitness
David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Example Contract
Unless otherwise instructed by the client-attorney, or unless refundable tickets
are not available, Mr. Expert will purchase refundable tickets for any necessary
travel. Should the client-attorney request that Mr. Expert purchase nonrefundable tickets in order to travel at a lower cost, or if refundable tickets are
not available, the client-attorney shall reimburse Mr. Expert for the cost of any
non-refundable ticket at the rate outlined herein whether or not the ticket is
used.
The client-attorney may avoid the ?? percent handling fee associated with
certain travel expenses by arranging to directly purchase round-trip travel
tickets on behalf of the expert, and by arranging for the direct payment of any
car rental expense, lodging, and meal expenses by the client-attorney's office.
73
http://www.expertlaw.com/library/expert_witness/expert_contract_1.html
So You Have Been Called as an Expert Witness?
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Example Contract
Qualifications:
The client-attorney has had the opportunity to investigate and verify Mr.
Expert's credentials, and agrees that Mr. Expert is qualified to perform the
services described in this contract.
Terms of Engagement:
The client-attorney is responsible for payments to Mr. Expert as outlined in this
contract, regardless of any arrangement the client-attorney has with any party
or parties he/she represents. Mr. Expert will issue bills on a monthly basis, or
whatever other interval he deems appropriate. Bills are due on receipt, and
shall be considered delinquent if unpaid more than thirty days after their date
of issuance. Interest shall accrue to any delinquent balance at the maximum
rate permitted by law, not to exceed ?? per cent per month. In the event that a
bill remains unpaid for ?? or more days after the date of issuance, Mr. Expert
shall have the unrestricted right to resign from performing additional services
for the client-attorney on any and all cases that Mr. Expert is working on for the
client-attorney's firm.
74
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Example Contract
Choice of Law and Jurisdiction: This agreement shall be interpreted under the
laws of the State of _____________. Any litigation under this agreement shall
be resolved in the trial courts of ____________ County, State of
____________.
I accept the terms of this agreement:
75
Date: ____
___________________________
Linda Lawyer, Client-Attorney
Date: ____
___________________________
Edward Expert
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Questions?
76
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
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So You Have Been Called as an Expert Witness?
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC
Contact Information
David’s Upcoming
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PhD, PE, PH, CFM, CPESC, D.WRE
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David Williams, PhD, PE, PH, CFM, CPESC, D.WRE, DTW and Associates, LLC