Three friends of mine, all working expert witnesses, called me to recount their experiences with private investigators who interviewed them for prospective cases. One complained that the private investigator “asked me if I could stand up to a Daubert Hearing”; another seemed insulted that she was asked what her answer would be if the prosecutor “questioned my high expert fees”; and the third groused about being asked by the interviewing P.I. “why I prostituted myself in ‘criminal defense alley’ ”—the throng of law offices that occupied a corridor in and around the county courthouse. They accounted for more than 50% of his revenues the preceding year. All of these colleagues demanded to know (from me) what was up! Why were they being grilled like this? Were they viewed as expert witnesses or as suspects? Could P.I.’s even ask such questions? They all claimed this was a “first”; but they suspected it wouldn’t be the last time they’d be so queried. I told them that they had the right to remain silent, if they chose, though by taking that tact their value in the P.I.’s eyes might cascade like Niagara Falls. What shocked them, however, was my telling them that P.I.’s could ask such questions—and that more P.I.’s should ask those kinds of questions and many more like them!


Questioning Prospective Witnesses…a Necessity

Questioning your prospective expert witness is vital. If you’re running defense for your hiring attorney by only scanning a pile of expert witness resumes, you should probably add a vital component to your examination efforts: Call the experts into your office or at least interview them over the telephone. You and the attorney for whom you work cannot afford to have them “drilled and killed” on the witness stand by a salivating prosecutor or other opposing counsel. Expert witnesses should expect questions about Daubert whether or not they are doctors, scientists, engineers, or economists. Daubert is the “gatekeeper” standard for testing in court not whether there is evidence, but whether that evidence was gathered properly.

So, your expert witnesses can bet their next breaths that their testimony about the method for gathering evidence will now and forever be deemed light-years more important than whether there is evidence. This “method-over-matter” point of view held by courts must be understood by all expert witnesses—regardless of their discipline and expertise—as a signal to include the intellectual method they utilize to arrive at their expert opinion. And it is their responsibility to be ready to address that. Daubert, inside courts, has evolved away from being merely THE Supreme Court threshold decision about the scientifics of fingerprinting (Daubert v. Merrell Dow) to its present-day “gatekeeper” evidence-controlling purpose: A Daubert Hearing alerts the expert witness that his or her thinking and reasoning about the evidence is critical to analyzing the method used for bringing that evidence into court and the light of day in the first place.


What, Who...Daubert and Me?

Don’t let your prospective expert witnesses cop out by telling you, “Daubert doesn’t apply to me. I’m not a medical doctor/engineer/scientist/economist.” Daubert, if nothing else, scrutinizes for due diligence in the evidentiary thinking processes of non-scientific pre-testimony expert witnesses. Daubert can either seat expert witnesses or strike them and send them packing. You can even advise prospective experts on some of the Daubert-type questions opposing counsel might ask them, to try to disqualify them: The theory or technique you’ve described, has it been tested and validated? This kind of question goes to the issue of how established, experienced, and even respected your expert witness is. Your attorney is paying him or her for their expert opinion; opposing counsel is not paying them a dime. Therefore, the big, imaginary “zero” opposing counsel sees on the expert’s forehead represents a target at which to aim and fire the toughest questions.

The responses your expert gives should be precise, non-argumentative, and without any arrogance or aggrandizement. He or she should sound as though they are well-experienced and, as appropriate, cite other sources in their profession who validate their opinion. What about peer review? Has your theory or technique been peer-reviewed and published? This question goes to whether and how your expert is perceived and regarded by his or her peers in their field of expertise: Is he or she known or unknown? Highly-regarded or an “also-ran”? Credible or discredited? Peer reviews are considered the litmus test. Your expert should frankly—without boasting—define and describe those of his or her theories that have been peer-reviewed and published. What is the potential or previously documented rate of error of the method used? This question goes to the reliability of your expert’s theory. It is important to remember that a high error rate does not always mean the theory is unreliable; it merely means that the rate of error is something to factor in, not disregard. A significant error rate does not render invalid your expert’s theory. By the same token, if your expert’s theories or techniques are controversial, that is not necessarily a negative against your expert. Controversy is active and ongoing debate; it doesn’t mean your expert’s work and reputation are tarnished. Since opposing counsels often look for opportunities to do a verbal “Assault-and-Daubert,” you can tailor-make your own questions to acquaint your expert with and prepare him or her for Daubert issues.


Questions Are Critical—They Aren’t Criticism

Expert witnesses should not be put off or feel insulted about any questions the P.I. asks them. P.I.’s can make their interviewees feel more comfortable about answering their “twenty questions” by advising them that “I have to ask you several questions along the way. Better I do it before the prosecutor does; that way you and the attorney I work for can look good in court.” Or, “I hope you won’t be insulted, but the more questions you answer for me, the more qualified my attorney can make you look in court.” Or, “Prosecutors regularly dispute the qualifications of the expert witness. The Daubert Hearing gives them an additional tool to not only dispute but also to try to disqualify you. And we wouldn’t want that to happen, would we?” With this in mind, expert witnesses should also expect to be asked questions about their “high” hourly fees. A private investigator friend of mine recalls a prosecutor grandstanding before the jury by haranguing the expert witness about his fees. He ended by telling the expert that his boss, the district attorney, “pays me only a fraction of what you make per hour.” To which the expert witness replied: “Well, the district attorney certainly knows your worth far better than I do.” The courtroom, including the judge and jury, erupted in laughter; the prosecutor, though, seemed not to be amused.

Human nature is often unpredictable, and just because an expert’s good-natured humor may incite laughter from a judge and jury, does not mean that the expert is favorably regarded at all. An embarrassed and insulted opposing counsel can often very skillfully turn a moment of levity against the expert. Indeed, the judge, while laughing and seeking to mollify opposing counsel’s bruised ego, might even discredit and dismiss the expert as off-base and impolite. That well-aimed response might—in jury deliberations—even be regarded as impertinent and rude. The jury might be ashamed of its spontaneous outburst of laughter and, with stony faces, try to rectify their “sin” by regarding the expert with mistrust...as somebody given to self-aggrandizing and discourteous responses. It is better that opposing counsel expose his or her own feelings of annoyance about your expert’s so-called “high fees” and be the spectacle in their own circus of critical questions. Your expert need not be caught up in this game. You might wish to repeatedly and diplomatically advise the expert to tell the truth, to act naturally, not to exhibit arrogance or ridicule, not to joke, and certainly not to argue with opposing counsel. In this context, “Sharp tongues sometimes cut their own throats” is a maxim that describes what could happen to either an expert witness or the opposing counsel. A backlash could hurt the expert more than it hurts opposing counsel.