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It’s Preparation...Not Ping-Ponging With the Prosecution
Rather than risk your expert’s trying to match wits, in the foregoing manner, with the prosecutor, I recommend that the expert be prepared to reveal to you why their hourly fees are the way they are. There are at least nine reasons your expert witnesses might find valuable support for questioned fees: (1) years of experience in the field; (2) court certification your expert has; (3) membership on any court’s Panel of Experts; (4) rank and tenure in your expert’s professional discipline, such as college and university teaching; (5) books, papers, or journal articles your expert has published; (6) the number of cases in which your expert has provided expert testimony; (7) your expert’s membership and rank (such as president) in professional associations; (8) your expert’s participation and presentation at professional conferences, particularly those where continuing education credits (e.g., CLE) are awarded to their audiences of licensed professionals; and (9) your expert’s media profile: how often he or she has appeared on television or radio providing their opinions on national topics. Juries can often follow a logical trail and understand why a judge allows expert witnesses into the court to opine about cases. In other words, juries are not usually put off by carefully-explained and well-reasoned justifications the expert makes for his or her fees. The expert witness should never be gulled by the prosecutor’s comparison of his or her own salary with that of the expert. Tell your experts to treat their fees as a kind of evidence and to speak about them openly and frankly. Rather than be or feel vilified by the prosecutor, your experts can show themselves as vital to the case because of their fees.
Frank and Direct Answers Are Best
It is highly doubtful that a prosecutor would insinuate that an expert witness “prostitutes” himself or herself in certain financially-lucrative environs around the court. Most fish find their water in the ocean. Too, any number of expert witnesses might find prospective cases among a virtual “sea” of law offices around the courthouse. It’s only practical and makes good business sense to market themselves in and among such a constellation or cluster of law firms. What the P.I. means by the “prostitute” question (if he or she even chooses to use that word at all—however, one P.I. did when querying me!) is whether the expert witness shows a dominant bias—for either prosecution or defense—in the kinds of cases taken in, say, the past year. Again, it’s better that your prospective expert answer the question head-on and directly.
By stating the obvious—that most private law firms house only defense counsels—your expert can show he or she is merely answering legally-constituted calls for defense expert testimony support and not turning away prosecutors’ requests to provide expertise on cases. To be sure, prosecutors use expert witnesses. However, the number of cases for which they bring an expert into court is but a fraction of the frequency with which defense attorneys need and use experts. Even in those cases where the defendant has been pronounced by the court as “indigent” (impoverished and unable to pay) he or she is still the client of a defense attorney who thus may need an expert witness. There’s also the fact that prosecutors select their expert witnesses from the court’s approved Panel of Experts. If your expert witness is not on the panel, that may not be his or her fault. Thus, their answer to an inquiring prosecutor, regarding the percentage of prosecution and defense cases on which they’ve worked, can reasonably be: “I would probably work more prosecution cases if I were on the court’s Panel of Experts, but I am not; and thus far I’ve not been chosen by the district attorney to participate on a case.”
If your expert has completed the application process to be on the panel, he or she should certainly state that; that fact is good public relations. The prosecutor knows that an expert’s not being on the court’s Panel of Experts may have little or nothing to do with the expertise and qualifications of the expert. Often, the court’s panel is full and there simply is no room for another expert. Frequently, not all of the judges, or any single one of them, who comprise the team that chooses expert witnesses for the Panel of Experts, hears cases for which a given expert’s rare experience and expertise are needed. The court’s “problem” here is, of course, known by the prosecutor, and is not something to be held against the expert. Your expert is not responsible for any past or present circumstances inherent in the court. Again, if your expert witness has made application to the court, to be on its Panel of Experts, he or she should so state. That revelation can clear the air and deflect any “end run” the prosecutor might try to make in the effort to disqualify your expert.
Who Can Pre-qualify Your Experts Better Than You?
Both P.I.’s and expert witnesses provide a huge and valuable service to the attorneys who employ them. And every P.I. and attorney I’ve worked for has been highly appreciative. Expert witnesses should regard questions from P.I.’s as appropriate and necessary safeguards to protect the legal rights and interests of the client and fulfill the case objectives of the hiring attorney. As a Private Investigator, you know which way the winds inside the court blow (or are likely to) better than any roomful of expert witnesses. Take time to ask your prospective expert witness the hard questions, and to pose the tough issues. If possible, meet and confer with him or her personally. Go over their resume and interview them about the information it contains. Ask them to tell you about their four cases (“your top four”) that are unique and unlike any others on which they’ve worked; then ask them to define what makes these four cases stand apart from the rest. Show them a calendar, and ask them about their availability for trial as you highlight the anticipated trial dates. Determine whether they might have schedule conflicts.
Taking Time to Talk Now Increases Value Later
By taking the time to have at least a one-hour “sit down” discussion with any prospective expert, you can pre-qualify him or her for your attorney. Your prospective expert’s opinion is the purpose for which he or she might be hired, and it ought to be the rock-solid foundation upon which their role and reputation are established and respected by the court. Therefore, your reviewing and clarifying the opinions to which they will be testifying to, is key critical. It will do you both good to hear, in their own words, what opinions they hold about the case and what they will likely say in court. Equally important, their going over with you the facts and assumptions that frame the bases of their opinions is a practical step; it is the productive equivalent of a baseball player’s doing warm-up calisthenics and taking batting practice. One can never review one’s facts and assumptions too much or too often; such review prevents one from being caught off guard on in “the blind” by opposing counsel’s peppering questions.
You will need to hear and your prospective expert needs to say how, that is, in what way they derived their opinion: What methodology did they employ? This tracking the trail from beginning to end sets up a logical step-wise chronology that can be as impressive as it can be instructive. In my own experience, prosecutors have sometimes been left astonished and speechless before admitting, “No further questions, your honor,” to the judge, after I have carefully laid out the methodology that framed and informed my professional opinion. You will certainly want to ask your expert when his or her opinion was formed. You can stress the importance of their addressing the timing of the formulation of their opinion, as the opposing counsel will seek to find some kind of fault with the timing—holding it up to be premature or incomplete, and the resultant opinion as inaccurate.
Your thorough and intensive interviews and evaluations of expert witnesses can result in your attorney’s being able to witness their value in court.
Dr. James E. Shaw teaches law in the Police Sciences curriculum at El Camino Community College, California’s largest community college. He is a member of the Panel of Experts of the Los Angeles Superior Court, Foltz Criminal Justice Center. He is an Expert Witness who enjoys a large media profile on NBC, CNN, CBS, ABC, and FOX News, as a result of his nationally-acclaimed book, Jack and Jill, Why They Kill, used in colleges and universities nationwide. A Superior Court-certified expert, his expertise is in Gangs; Street Terrorism; School Safety; and Juvenile Violence/Personal Injury. He works nationwide and has provided opinion and testimony in a federal court gang bank heist cast; a U.S. Navy court-martial gang case; a triple murder death penalty gang case; a prison parolee school assault case; weapons cases; and numerous school safety personal injury and gang-related cases. He was one of the keynote speakers at the Columbine High School memorial ceremonies honoring the slain students. He is also the author of a violence prevention and education curriculum, B.R.A.V.E. (“Be Resilient Avoid Violence Everywhere”) and a member of the American Academy of Forensic Sciences. He can be contacted at: (310) 678-6950 or (310) 649-6151, and via email at: courtexpert1@sbcglobal.net.
