Hiring, Examining, and Being an Expert Witness

“Hiring, Examining, and Being an Expert Witness,” that’s the subject of today’s ACTEC Trust & Estate Talk.

Transcript/Show Notes

This is Margaret Van Houten, ACTEC Fellow from Des Moines, Iowa. Estate lawyers often find themselves serving as and working with expert witnesses to address procedural and substantive issues. What should they keep in mind when retaining an expert? How do differing federal, state, and local rules regarding experts impact testimony? And what issues are properly subject to expert testimony? ACTEC Fellows Meg Lodise of Los Angeles, California, Turney Berry of Louisville, Kentucky, John Hartog of Orinda, California, and Professor Rob Sitkoff of Cambridge, Massachusetts joins us today to share their expertise.

Welcome Meg, Turney, John, and Rob.

Meg Lodise: Thanks, Margaret. We are happy to be presenting this today. We made this presentation at the ACTEC Annual Meeting in March and spent about 90 minutes talking about all of that, so obviously, we’re going to cut it a little short today. But we did want to talk about some of the highlights.

The Decision to Hire a Consulting or Testifying Expert Witness

The first thing that we focused on when we talked was the initial decision to hire an expert and what kind of expert you should hire. There are many types of testimony that an expert can give, but there are basically two types of experts. One being a consulting expert and one being a testifying expert. And it’s important when you start out with your case to determine which kind you need and to determine that relatively early.

I think all of us came away with the recommendation to our audience that looking at your case early on and deciding whether or not you want to retain an expert is critical. It helps you develop the theory of the case, and an appropriate expert can advise you on strategies that need to come forward. Although Rob is going to point out later that the expert is not the lawyer, the expert is the expert. So, why don’t I turn to John, and maybe, John, you can talk a little bit about the retention of an expert?

Being an Expert Witness

John Hartog: Well, I’m looking at it from some practical point of view that as an expert, getting paid is always a useful attribute and experts after trials often are not viewed in the same light as they are prior to trial. So, my suggestion is that when you serve as an expert, you obtain a generous retainer. Maybe a rule of thumb is that the retainer is equal to the cost of testifying at trial, including travel.

And when you’re hiring the expert, you should – to echo Meg – do so at an early opportunity to help develop the theory of the case, as well as to get an educated expert. Because when the expert testifies, the better the expert knows the file, the better the testimony will appear to the fact finder. And the more file the expert has, the more confidence the expert will have in being able to say, “No, that’s not true,” in response to a cross-examination. Rob is going to talk about how a testifying expert ought to make the record look, and I’m going to turn it over to him now.

Balancing Your Role as an Expert Witness if You’re Also a Lawyer

Professor Robert Sitkoff: Thank you, John. So, one of the difficulties with trust and estate lawyers or trust and estate professors serving as expert witnesses is that we are also trained as lawyers. And this is a complexity in a couple of ways. One is admissibility, to which I’ll return in a moment, but the other is just on a more fundamental level of the role in the case. The role of an expert witness is to provide expert opinion, to provide testimony on something about which you are an expert, and to assist the finder of fact. That’s a different role than the lawyer. So, this is a point about neutrality, and it’s also a point about responsibility.

A very fine trial lawyer in a case I was involved in some years ago had this really nice suggestion. He said to another expert, who was having some difficulties the night before he was to testify, that “You’re not here to win the case, I’m here to win the case. You’re here to give me a clean record on something you know better than anybody else in the room.”

The idea here is that that expert is supposed to be objective and neutral in the sense of, “This is what I know to be true about the world,” and understanding that will be helpful for the finder of fact. Where that’s complicated, though, is as experts in custom and practice in trust and estates, we’re also experts in the law, and we may be providing assistance to counsel in framing and understanding the case.

So, it’s an important distinction to keep in mind when transitioning from a consulting expert to a testifying expert and the neutral role of a testifying expert. And also, for giving that testimony on custom and practice relative to trying to testify on the law. The former being admissible and proper for an expert, and the latter is not.

Margaret G. Lodise: So, I think we were going to next turn to Turney because Turney had some advice in terms of somebody considering being an expert. Which, I think, many of us at ACTEC would qualify as experts, but whether or not you want to be one is another question.

Should I Be an Expert Witness?

Turney Berry: Yeah, it’s interesting. We had some survey results, Meg, in our talk in New Orleans, and a lot of the ACTEC Fellows have served as experts, which I think is interesting and encouraging. I do think it’s a line of work that reasonable people can decide they like it, and reasonable people can decide they don’t like it.

One aspect, of course, is that you really do need a fairly thick skin because people are going to pick at your qualifications, they’re going to pick at your opinions, they’re going to argue about how you worded things, they’re going to argue about whether you, essentially, really know what you’re talking about and about what it means.

Sometimes that is the lawyers that you’re working with who have their own very definite opinions about how you want to describe something, how you should say something, and what language they want you to use. Not necessarily what conclusion they want you to draw but how they want you to say it. And so, if you’re not accustomed to that, if you don’t like that, you may not enjoy the process.

And then, of course, there are the nice people on the other side who want to tell you that when you said the sun rises in the east, what you really meant was that, in this particular case, the sun, in fact, rose in the west, despite what you think you said. And so, some people just don’t react to that very well.

The other thing that I think is important is just to think about yourself. Do you enjoy being around trial lawyers and litigators? Most of the time, we are spending time with transactional lawyers, other tax lawyers, other estate planners, fiduciaries, and our clients, who are, for the most part, drawn from a particular segment of society. It’s a broad segment, not everybody’s alike, but they’re in a group. Trial lawyers are a different beast, nothing better or worse, but they’re just different.

How much time do you want to spend around litigators whose primary, if not only, concern at the moment when they’re dealing with you is their case? And they want your attention, right then, about their case, which is the most important thing in the world. And how does that relate to the rest of your practice?

And I don’t think that you should conclude that just because other people you know enjoy being an expert witness that you would enjoy being an expert witness. You just need to try it out and make that decision for yourself. And if you enjoy it, then you’ll be good at it, and you’ll do more of it. And if you don’t, there’s no crime in that. Go back and keep doing the other work that you do enjoy.

Thank you very much, John, Turney, and Rob. And that concludes our talk for today.

Margaret: Thank you all for that fine presentation.

You may also be interested in:

• Witness Depositions of Valuation Experts (Feb 2023)
• Lay Witness Opinion Testimony (Feb 2020)

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