Asked to be an expert witness - downside?

I just got a call to be an expert witness in a trial. I had done the analysis about 4 years ago, which is why they want me to be the expert. Its a lot cheaper to refresh my recollection than to have someone start from scratch. This should be pretty straightforward; the data analysis I did at the time was very thorough.

Are there downsides to being an expert witness? IOW: how can this bite me in the ass sometime in the future?

It seems like this could only be a career plus, but I thought I’d see if you guys could think of minuses I should consider.

Plus, anybody know the going rates for expert witnesses? I’ll be looking it up to see if there is any data online, but thought I’d ask you guys too.

Your testimony can convict an innocent person if your wrong about your field of expertise. I wish I could remember what was on the news a few months ago about the FBI saying was true , but wasn’t. Many people were convicted on their expert testimony that was wrong.

I’m not saying you’ll be wrong, just that it’s a downside if you are.

Good point, and I should have been more specific. This is a business case, so no innocent people here. :wink: I don’t believe it will even cause the business to go out of business, but I should check it out anyway.

You could also be a bad witness. You may be 100% and a good opposing lawyer can tear you to shreds if you’re not well prepared. Just because you know your stuff, doesn’t mean you know it, when you’re on the stand and in front of a judge and get nervous.

The other guy’s lawyer may make you look a fool.

Of course the attorney that hired you should go over and over your testimony and ask you questions the opposing attorney may ask, so you look competent.

I don’t think it could hurt you careerwise

Oddly, I just heard a lecture from a prof at my University about being an expert witness. It seems he’s done several now, and it helps out his lab but it’s a real drag. My thinking is maybe contact folks like him who have been expert witnesses before (I mean, beyond this thread), if you can and ask for tips? I’d imagine you know someone who has done this before, if you just do a little digging.

Goods thoughts and tips. I know someone that was supposed to be an ew, but the company settled out of court, so he did the analysis and reports, but didn’t have the pressure of cross-examination.

I can think of a few possible downsides, if a lot is at stake in the case at issue. One is that the opposing attorneys will comb through your background with a fine toothed comb. If it’s a high-stakes matter, expect them to read every word you’ve ever published anywhere, trying to find statements that would appear to contradict what you would be testifying to at trial. Along the same line, while you are testifying, the opposing attorneys will try to trip you up and make you look less “expert,” for lack of a better word. For example, a molehill of perfectly reasonable scientific uncertainty can be made to look like a mountain. It can be hard to explain small differences in technical material, and do it in language that is understandable by a lay audience.

Another possible downside is that the time-scale of the trial can be quick, and there might be a lot of work involved for you. The attorneys for your side may need you to drop everything else you’re working on for some emergency analysis or meeting related to the trial. Are you in the same city where the trial would be taking place? Trial dates are scheduled by the court, and the date chosen might conflict with some family event.

All that said, I wouldn’t discourage you from doing it, but try to get as much information as you can before you agree to it.

A former boss of mine used to testify as an expert witness in criminal trials - he is a pharmacologist (NOT a pharmacist) and would testify (usually for the defense) about diminished capacity when a person is under the influence of X, Y or Z, X,Y and Z, X and Y and sometimes Z, etc.

He seemed to like it ok as he did it all the time (usually 2 or 3 trials a year).

I have been a juror in several cases where expert witnesses were involved. All I can add is my impression of how they were treated during the trial in those particular cases.

The only times I saw expert witnesses being given a hard time were during the establishment of his/her certification as an expert witness before he/she gave actual testimony. Sometimes opposing counsel would simply accept that the witness was an expert in his/her field. Other times opposing counsel would spend about ten minutes grilling the person about minutiae in his/her field attempting to trip him/her up. (In the latter instances I was under the definite impression that the attorney was attempting to put doubt about the witness’ subsequent testimony in the jurors’ minds - at any rate, every one of the expert witnesses I saw were eventually established as being just that.)

Once the actual testimony began, none of the expert witnesses I saw were treated badly at all. I don’t see how their testimony could negatively affect any of them in the future.

No, you shouldn’t. Your job is to perform the analysis and testify to your conclusions therefrom. You are not supposed to partisan witness.

As to potential downside…if you testify consistently for one side…either Plaintiff or Defendant, eventually, you’ll be thought of a either a Plaintiff’s expert or a Defense expert, and likely find yourself flagged as such in certain databases. It can become a topic of cross examination–Mr. Expert, you’ve testified at 10 trials in the last three years, and always for (insert side here), isn’t that right?–etc., in an attempt to show bias, or otherwise reduce the impact of your testimony.

Well I’m not sure how the rules have changed over the years, but you may have a hard time with eligibility for Olympic Witnessing once you’ve gone pro.

The only downside that I can see would be to your pride. A good attorney can make an expert witness seem like a bumbling idiot.

Also, if you’re not very good then you won’t be asked to do it again.

The upside is the money. I don’t know how much business experts make, but medical experts charge within the range of $500-$700 an hour. It depends on how many other experts are out there who are able and willing to give the same testimony.

Just listen to your attorney and answer the questions to the best of your ability. Don’t worry about the other side tricking you, that’s what the attorney that hired you is supposed to be worried about.

I was once asked to serve as expert witness but, although it would have been a fun bullet for the resume and a nice fee, had to turn it down. My heart wouldn’t be with the side calling me, I’d have been forced to rehearse incomplete answers to stupid questions and, once on the witness stand, would probably have lost my self-control and blurted out my own “truths.” :smiley: :smack:
(Edit: In hindsight, I should have contacted the other side and offered to expert witness for them! )

My father is now an expert witness and earns between a quarter and half of his income doing that. I have called probably hundreds of expert witnesses on various topics in my former career, and have myself been an expert witness. All I can say is that the negative things people are suggesting may happen (with the exception of Oakminster) are outside my own experience.

The only time I ever went after an expert witness in an aggressive way was in a situation where the expert testified that a particular thing was never done in a particular way, despite never having actually done that thing himself nor having ever seen it done. This is very far past an unusual occurrence, and was an example of what happens when folks put up a partisan witness and try to present him/her as an objective expert witness.

There will be cross examination on qualifications, usually before you testify, and they are pretty straightforward: you have them or you do not. In my former jurisdiction an expert could be qualified if s/he knew more about a subject than the average joe and if their testimony would help the jury/judge understand the issue better – so the bar was really very low.

There will be cross examination to the effect of asking if you could be wrong, or if your data (or the addition of some other data) could lead another person to a different conclusion, or whether there is any controversy in the field and so on. The answer to these questions is nearly always " Why yes, of course, but I think I was right in this instance". The other side’s expert will generally have prepared them for your testimony and told them where the weak spots are. If your report says “a” and you have published somewhere an article which says “not a” then you may expect to hear about it – but this happens in some fields and you will have the time to explain how this could be (Like “well, it is a if green but as everyone knows it is not a if blue, so there is no contradiction”.)

The primary downside to being an expert witness is that there is a certain amount of time spent hanging out in the witness room – assuming it gets that far – which often results in going home again without having testified. This drives my father crazy. I just roll with it as I knwo what it is like. Just be sure to get paid for your time, including wait time.

Fees for experts vary wildly depending on the field of expertise.

The only way it can bite you in the ass that I can think of is if you still work for the people against whom you are testifying. Then you will likely lose your job and would do well to be vacationing in an undisclosed location come trial time.

Thanks for all the tips folks! I think I am going to do it, at the very least just to experience something new. I’ll let you know how it goes.

Did you already give a deposition about the case?
If so, you are already on record (if it is admitted). I’d say go for it.

If the judge finds your testimony non-credible you could easily find your career destroyed. Guess what happened to the expert witness in this case; start reading on p. 31 (a surprisingly fun read, even if you aren’t familiar with the issues). If the judge issues an opinion like this about your testimony, you will never work in the industry again.

I’ve been an expert witness in numerous filings and depositions and took the stand at least three times. Here are a few of the things I learned from my experiences.

  • Don’t try to be more than you are If you are an expert at making brownies and you are asked to explain apple pies simply state that you get your pies from the pie man. You might know a lot about apple pies but don’t elaborate if its not your field. I once took damage for stating an opinion even after I preceded my remark with a caveat that I was not an expert in that subject.

  • In your subject you are the smartest person in the room - You have to believe that and act accordingly. Your body language, tone of voice, phrasing etc must convey that you know exactly what you are talking about.

  • Don’t help the opposition - You been hired to support one side, not both. That means you are not obligated to educate the opposition unless you feel it would help your client. If the opposing lawyer asks you to describe the webbed feet of a chicken, tell him that you don’t understand the question. It’s not your job to educate him that chickens don’t have webbed feet. This is a powerful tool on your behalf. It takes the opposing lawyer off track. He may try to make you look silly for not understanding his question but more than likely he will have to stumble around for a while. Then when you finally tell him the truth about chickens it will be obvious that he is taking damage.

  • Do help the client - If the opposition didn’t give you the chance to provide important supporting info then your side’s lawyer should be capable of leading you to that. In case he doesn’t you might have to find an opening and insert it. If the fact that chickens can’t fly 100 yards is important and your lawyer doesn’t ask you, “How far can chickens fly?” you might have to prompt him by injecting a clue or statement it into the answer of another question. Like, "I am qualified because I have a degree in waterfowl and also some expert field work in the area of distance measurements of chicken flights. Sometimes, if the judge is distracted, you can just go ahead and make your statement even if it isn’t asked.