Part 17 of 20
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Becoming an expert witness is another way to make some extra money on the side.
“I’m the guy your lawyer called when she realized how difficult it was going to be to dig you out of the hole you dug for yourself,” is a quote from the television show, Bull. A comedic crime drama on CBS about the founder of one of the most prolific trial consulting firms of all time.
The fact is, attorneys, regularly hire expert witnesses to play a critical role in the judicial process. The testimony of these professionals can swing juries, educate judges on complex technical subjects, and ultimately win lawsuits.
In building design, expert witness opportunities are available for individuals with advanced expertise in various disciplines, from building codes to life safety. In return for their opinions, expert witnesses receive compensation from the attorney who retains them. This compensation can vary based on the subject of the lawsuit, the witness’s experience, and is negotiable. Anyone willing to market themselves can qualify as an expert witness. There are no official rules that dictate who can and can’t serve as an expert witness. Instead, attorneys and judges rely on two significant court opinions when determining whether an individual is qualified. One, witnesses needed to provide testimony based on techniques and models widely accepted in the scientific community. Two, testimony can be based on an expert’s professional opinion, if the expert witness has used scientific methods, relied on peer-reviewed methodology, and has the experience and education to support her, or his, conclusions.
Generally speaking, you are qualified to serve as an expert witness when you have sufficient skill, proficiency, and experience in a particular area of knowledge to assist a judge or jury in judging the matter at hand. If you have any degree of specialized training, certifications, advanced degrees, unique work experience, or are regarded as a thought leader in your field, you could have what it takes to serve as an expert witness.
How To Find The Work
Typically, design professionals do all they can to avoid lawyers. In this case, your success relies upon the exact opposite. Just as in designing buildings, marketing yourself as an expert witness is a reputation-driven task. Word-of-mouth and repeat business results in the majority of expert witness referrals. An expert must excel and be responsive and easy to deal with to generate positive word-of-mouth referrals. Besides, other logistical considerations can also factor into an attorney’s decision to retain you, including:
- Your previous experience working as an expert witness
- Your proximity to the trial’s location
- The hourly rate you establish for your services
- The flexibility of your schedule
- Your ability to communicate complex concepts in a simple and straightforward manner
How To Prepare
Before agreeing to become an expert witness, you must be sure that you are comfortable going through a deposition or trial, as well as having your personal and professional record scrutinized through an adversarial process. Expert witnesses will typically have their credibility, motives, integrity, and qualifications challenged by opposing parties. They can be subjected to pointed questions. As such, expert witnessing is not appropriate for the thin-skinned. Expert witness work is also deadline driven, so you must be comfortable working under a deadline. Travel may be required if you accept cases in distant locations.
Not every case heads to the courtroom, however, and there’s no shortage of expert witness opportunities that only involve the review of paper records, independent testing, accident site visits, or report writing. It is essential that you disclose what you are and are not comfortable doing with the attorney before you begin work as an expert so that everyone is on the same page as to what can be expected going forward.
Ideally, an expert witness will have an advanced degree in architecture or construction management. However, having a long and distinguished career in building design or construction can often outweigh the need for the deep academic background. In many instances, having years of experience and a managerial position are primary concerns. If an attorney is interested in retaining you based on your credentials, they will usually consider several supplemental factors, including:
- Do you have published work in highly regarded journals or trade publications?
- Have you served as a speaker at professional conferences?
- Has the press quoted you?
- Have you won any prestigious awards, grants, or fellowships?
All factors vary from case to case, and from attorney to attorney, but generally speaking, the more professional accolades an individual has, the more attractive they will be as a candidate expert witness.
How To Handle The Job
Adhere to the essentials of expert witness report writing. Mistakes in an expert report could preclude you from testifying; while a clear and comprehensive expert report could tip the scales in litigation. Before drafting a report, discuss the scope of the report with the attorney in detail. The next step is to make sure your report includes all that is required. While the rules vary from State to State, at least 35 States have adopted procedural codes. Ultimately, the report should be easy to read and look professional. It is a best practice to have a copy editor proof the report for spelling, grammar, and overall clarity.
Practice forming defensible opinions by obtaining all of the facts. Some attorneys may be reluctant to provide you data or information that may be damaging to their case. Some attorneys may try to influence the course of data collection and information review to avoid potentially damaging information to their situation. Make it clear to the attorney(s) that he or she must have all pertinent information. In the same context, you must fully communicate and disclose all your data to the attorney(s).
Maintain your independence and objectivity. If your testimony causes others to perceive you are biased, your testimony and evidence connecting certain events or persons are given less weight, and there is less confidence in you as an expert. Although your opinion may remain admissible by the judge, bias may get you removed from the case.
There are generally two types of witness liability, criminal liability for actions such as perjury (or other crimes admitted during testimony), and civil liability for harm you cause by giving your testimony. In the case of criminal issues, the prosecution is brought by government prosecutors and not by the parties of the lawsuit. In the case of civil matters, such as defamation of character by the witness or malpractice, legal action may be taken by the aggrieved party under tort law or under specific statutes that provide remedies for the underlying claim of harm.
Ultimately a verdict may not be based on the technical merits of the case. It is not your responsibility to “win” the case. Therefore, avoid becoming consumed by the adversarial atmosphere of the litigation process. Reflect and demonstrate the highest level of scholarship and objectivity. Your professional and scholarly conduct will reflect on you and the building design profession as a whole.