Expert-ease

SO, YOU WANT TO BE AN EXPERT witness in a waste-related case? You figure you know your line of work as well or better than anyone else. You've been doing it successfully for many years, and have achieved some status and recognition among your peers. Being an expert witness would be a nice boon to the ego. And, last but certainly not least, there's the money — potentially lots of it — that you can make.

If the above describes your situation, then, in theory, you could be an expert witness. On the other hand, if you've never been one before, then, sad to say, most lawyers would consider you a hazardous substance. Of course, as trial lawyers see them, all experts — friendly or unfriendly, no matter how accomplished, gifted and talented in their art or craft — are dangerous people whose conclusions and testimony could undermine a case.

It is important to note that being an expert witness does not necessarily require a Ph.D. and a five-page resume listing dozens of scholarly publications. Nonprofessional individuals who perform work within a particular field can be as or more credible than academics and practitioners with advanced degrees. For example, a jury might decide that a certified Manager Of Landfill Operations with 15 years of experience knows what he or she is talking about more so than a professional engineering consultant.

If a lawyer asks for your advice on certain matters, expect the lawyer to do his or her utmost to control the relationship. Keep in mind the lawyer is fully responsible for the experts he or she uses, taking heat or praise for what the experts say and how they behave, both in the courtroom and behind the scenes.

The lawyer's control of the relationship is likely to begin with an engagement letter that, like lots of documents lawyers write, focuses on the things that might go wrong.

Chances are, you will be retained, if at all, as a “consulting” expert. That's because what you produce or contribute, verbally and in writing, as a consulting expert — or even the fact you have been hired as a consultant — is exempt from disclosure to the other side under the procedural rules in federal courts. Many states have adopted court procedures and standards that mimic the federal rules.

Only later in the process, after the case has been filed and passes into the discovery phase, will the lawyer be obliged to designate experts who will actually testify at trial. The designated experts will be subject to pre-trial depositions. A consulting expert may, for a variety of reasons, turn out to be unsuited for trial.

A typical retainer letter will require the consultant and would-be expert witness to be available on reasonable notice for meetings and phone conferences; to keep confidential all information he or she obtains and any research or investigation he or she performs; to use such information and analysis only in connection with the engagement; to avoid conflicts of interest; and to keep silent about his work on the matter unless he or she is formally identified as an expert who will testify.

[Note: The next installment of this article in Waste Age's October issue will show expert witnesses how to create and manage reports, documents and other materials to minimize the chances that the opposing side will use them in an unfair and misleading fashion.]
— Barry Shanoff
Legal Editor
Rockville, Md.