The Analytical Witness

An expert witness provides knowledge and experience that can aid in resolving disputes between plaintiffs and defendants – sounds simple, doesn’t it? After all, as an analytical scientist, you most likely qualify as an expert… However, it takes time and strategic work to develop the relevant skill set to become a professional witness, and to attract potential clients. And then you’ve got to deliver effective services to make it a successful business. In other words, the sooner you start your quest to be an expert witness, the better.

Two years of high school chemistry from an outstanding instructor set me off on my path down science. Years later, as a graduate student, I used the first commercial mass spectrometer, and began developing skills that opened doors in academia, government, and industry. I worked for the military in Japan to detect and quantify illegal drugs using mass spectrometry (MS) – and provided military courtroom testimony. I also gained a lot of experience using MS for environmental analysis of air, water, and wastewater to identify contaminants and to demonstrate the benefits of using carbon to clean-up these problems – my core competencies.

When I started my own firm, I had an ambitious plan: to become a “one-stop shop” for activated carbon services, including GC-MS routine and advanced testing, consulting, R&D, software programs – and expert witness services. In a recent case I had to use an outside lab to identify contaminants on activated carbon. I had to deliver the sample and maintain full custody while observing the analytical instrument runs, which enabled me to testify and offer my opinion on the results. Developing an expert witness or legal advisor business that fits with the rest of your business is good strategy; they feed off each other.

More than 30 years later, the business I founded still gives me a great deal of enjoyment – and I’ve picked up quite a few tips along the way.

1. Stand out from the crowd

There is significant competition for expert witness positions. Why? Because the pay is good and each case provides opportunities to develop for future jobs; that’s why you’re interested. With stiff competition comes the need to stand out and there are several ways to put yourself ahead of your peers:

• Highlight your education – but do not depend on something you learned many years ago. (That said, I had to give a lecture on hemoglobin and oxygen transport in humans for an undergraduate physiology course. Some 30 years later, I used the knowledge in a carbon monoxide fetal damage case. So, you never know!)
• Demonstrate recent, relative competency in your specialty
• Contribute to advancements in your specialty field
• Write for publications and give presentations – both raise your profile and also exercise the core skills needed to provide exceptional quality expert witness services.

2. Get listed

You can pay to get yourself listed in expert witness directories. I think it’s a good idea to spend some money when starting your practice; you have to speculate to accumulate, right? As your practice progresses and grows, you can eliminate this expense.

3. Market yourself

Often it takes being in the right place at the right time to land a great job, but that doesn’t mean you should leave it to chance. You always need to make an ultimate impression, both in the job and in your daily life. Let everyone know the kind of work you’re looking for – in other words, market yourself every day. Create a website to let the whole world know about your services and experience; it’s pretty much the only way to conduct business in the modern world.

4. Hone core skills

Fundamental skills are basic to your success. For example, active listening and critical thinking are important in both your practice and life. Why not consider taking a class on active listening or purposeful independent study? You may be surprised by what you learn. Other basic skills include: monitoring, coordination, social perceptiveness, being service driven, good judgment and critical decision-evaluation. Writing and speaking are prerequisite skills for success – do both very well, all the time. Work on the philosophy that your skill set needs to be continuously improved.

5. Connect

Having the right skill set is only the start to developing connections in the legal world. Take and give short courses, read articles on a regular basis, get a mentor, attend conferences and meetings – all of these will help you connect with others and market yourself. In short, network, network, network – and make use of new and established Internet tools that help you do so. Once you start making initial connections to grow your practice, keep a list of contacts. Periodically, send a business note to let them know you are available and seeking legal assistant work. Even better, send a bulk email that looks personal; never give away your list of possible job contacts. And remember that relationships need to feel personal.

6. Use your network

Try not to lose connections with your professional colleagues, because they can help position you in the expert witness business. An expert with many proven colleagues who can join in on a case is useful. My last case involved a breach of contract between two companies. I worked for the plaintiff and provided recommendations for a damage evaluator who became a very useful expert and contributed to the success of the case. As in many fields, a team approach is prevalent nowadays.

7. Position yourself and grow

You do not necessarily need to be the very best in your specialty practice. Instead, you must evaluate your professional assets to determine what your focused practice should be and where improvements are needed. For me, mass spectrometry and activated carbon was a natural fit due to my experiences and interests. Bear in mind that it is critical to continue educating yourself and keep up with advancements to stay current or, better still, ahead of the game.

8. Impress with your best

The best way to build your practice and reputation is to make the most of your current case. In fact, this is the most important thing you can do to develop your career as a legal assistant or expert witness. You need to impress both your hiring attorney and the opposing counsel. If your performance is honed with practice, they may request your services later.

9. Be service focused

Lawyers often have deadlines and need experts who will deliver under pressure, so try to provide a quick but valuable and complete service every time. You need to communicate with hiring attorneys about projected timelines for depositions and possible dates for trial and pre-trial; dates change so you need to monitor them. Carve them into your personal calendar – in blood!

10. Use it or lose it

Teaching classes or providing professional services is a good way to hone your skills while also making some extra revenue. After all, practice makes perfect. Without use and practice, your skills are likely to deteriorate over time. If you do a short course instruction, try to use different learning modules that include lectures, questions and answers, practice, videos of good and poor expert deposition performances, war stories and other examples. For example, we offer a course in “Expert Witness and Legal Case Support Work for Scientists” and “ABC’s of Intellectual Property” in public sessions and privately. You need a good course manual and accompanying presentation, plus literature references and books for continued post-course education by attendees. Individuals that attend your course should always be treated as professional colleagues – you may connect later with them in the professional market place.

11. Build on success

Though past performances are important, do not rest entirely on your laurels; as noted earlier, always strive for continuous improvements by constantly examining your skills and building your connections. A combination of success and continued work are key to building a long-term practice. Do not expect immediate success, but if you have early successes, do not assume you do not need to work at your role. There is and always will be a lot of competition.

12. Document accomplishments

During the expert witness hiring process, you will need to provide a resume, as well as a list of technical publications, professional references, and cases that you have worked on; keep them all up to date and remember that you need to have references in advance – preferably in the form of written letters in your possession.

13. … but do not embellish

When updating your resume, do not exaggerate or blow things out of proportion – you need to be truthful and accurate. It will be checked. I once worked on a case where a defendant claimed to hold a PhD degree. When the opposing lawyer revealed this was a lie, the individual lost credibility with the jury. And, in fact, the PhD claim really did not enhance his knowledge or ability in his specialty anyway.

14. Diversify

Having a diversified menu of legal services beyond being an expert witness is a good strategy. For example, consider offering:

• telephone or Internet-based question and answer consulting
• nspections and opinions
• data validation
• toxicology
• health and safety
• short courses
• information on questions and expected relevant answers for cross-examining attorneys (and others). 

Broadening your base of services in this way can lead to bigger and better assignments.

15. Analyze and evaluate

Smart professionals must analyze information and evaluate results to choose the best solution – and constantly monitor performance to stay on top. Of course, these skills are transferable and lead to higher incomes and personal satisfaction, too.

The importance of depositions

More likely than not, depositions will be the most important part of your casework. They are relatively informal question and answer sessions that are recorded and put into a written document. Depositions can later be used at trial, without the expert being present. Always request to read other case participants’ depositions, so that you can get a total overview of the particular case to provide truly professional opinions. You will need to state the basis of those opinions and what you have read previously.

In other cases, you will be asked to read and comment on other related depositions. As an expert, you should always be aware of the complex issues in a case to be effective. But, as noted above, if you are not asked then take ownership and responsibility.

A personal deposition demands your best efforts, which can only come from good preparation. You will have some control over the flow, so if you get tired or want to speak with an attorney off the record, you can ask for a break. And remember that you can ask for clarification of questions if you are in any way unsure. It’s a good idea to be friendly with the person making the deposition transcript – any assistance you give to clarify industry jargon or spelling will provide a more accurate presentation transcript.

Typically at the end of the deposition, you are asked “Do you want to review and make corrections to your written deposition?” Always say yes. You need to protect yourself and ensure that what has been recorded is accurate. Plus, you are paid for this task anyway. Typically a week or two after your deposition, you will be provided a copy for editing. Before editing, ask your hiring attorney if they have any standard operating procedures for editing, or you may need to do it a second time. Most importantly, always provide your review and sign off on the final deposition document.

Preparing for the trial

Good depositions often negate trials and their expense. Indeed, your working goal should be case settlement without trial. However, if the case does go to trial, you will need to do a significant review of the case files. Don’t panic, as there can often be significant amounts of time before the trial; you will need to know the date well in advance to avoid scheduling conflicts.

Keeping the documents, emails, books and articles that you have read to render your professional opinion in an organized order is very important to your success. Any written reports need to be on time and possibly notarized. Additionally, you must always know your current billings for the client. Indeed, expect this to be asked and attacked by the opposing counsel. The details you report in your time sheet should be discussed with your hiring counsel; they may not want too much detail (more likely than not, because opposing counsel can ask for and access any recorded time and charges). Verbal conversations with hiring attorneys are essential; don’t be afraid to always ask questions and request documents.

Get advanced and incremental payments for your work. You should be paid before the trial as your testimony and opinion should, of course, not be based on money. Always try to get a retainer fee to start the case. If possible, have future case invoice bills paid partially from your retainer and partially by new money, that way you’ll have a continuous retainer fee.

The trial

All questions should be answered professionally and artfully. Reading prior questions and answers in the literature will allow you to understand good and bad Q&A performances. Some lawyers will ask you to answer all questions with a “Yes” or “No”; but I recommend refusing this stipulation.

Answer the questions truthfully, but do not give unsolicited information in most situations. When you get a trick or compound question, you can ask for an explanation, which should be different than simply repeating the question back to you. Take a little time to formulate your answer before speaking; decision makers will accept such initial pausing as a sign that you are an insightful and thorough person. On the other hand, note that long pauses and certain body language ahead of an answer may be interpreted as a lack of truthfulness. Finally, look at the decision makers when giving your answer. They – not the asking attorney – are the ones you need to convince about your opinions at trial.

For me, combining analytical science and the legal system has been both challenging and rewarding. Two final words of advice: one, being able to explain complex phenomenon to lay people is an art that you need for success. And two, watching television programs that feature legal issues is a good way to keep connected with this professional subject – and your spouse! If you’re interested in my past legal experiences, take a look at the prior cases at www.pacslabs.com – select Expert Witness in the left menu.

Best of luck in the witness stand.

Henry Nowicki is president and senior scientist for PACS and Activated Carbon Services (www.pacslabs.com).