How to Avoid Being an Attorney's or a Client's ‘Hired Gun' as an Expert Witness

At other times, you might need to or choose to withdraw from the case

. This is especially relevant if the attorney requests that you deliver a dishonest opinion. If your attorney wants an opinion that you have not yet reached, you should clarify that it is not ethical and emphasize that you will not do that. At this juncture, you could offer to continue working, with the understanding that you will only deliver your truthful opinion after you review the evidence and complete your investigation. If you are willing to use your reputation and your experience to give an opinion that you know is unfounded, untrue, or not researched thoroughly by you, you are gambling that the other side will not Discover this. But remember, during cross examination, nearly any attorney can make a poorly prepared or dishonest expert witness sound like a fraud or an idiot.

While not the norm, some attorneys will only employ you if you agree to deliver the opinion they want. You should not accept a job from any attorney who has that expectation.

Because the clients ultimately pay the bills, they are more sensitive to your expenses than the attorneys. Clients know they need an attorney; they do not always understand why the attorney has to employ an expert. Worse, they do not always understand why experts are so expensive.

Since they pay the bills, many clients participate in phone discussions or meetings you have with attorneys, and occasionally they will call you directly. The best guidance is to say as little as possible to the client, especially if the attorney is not present. Your job does not require that you develop a personal relationship with the client; it only requires that you obtain necessary client data and materials to formulate your opinions.

Conflicts can arise if the client is anxious for the case to end, to receive your opinions, to figure out what you have discovered, and to minimize your bills. The best guidance is to spend as little time as possible alone with the clients. While it is inevitable that you will need to spend time in discussions with clients, try to do so with the attorney present, if possible.

Clients do not always know your objective role. occasionally, they believe that you have been hired to espouse their position and they may try to pressure you. The easiest defense is simply to state that you are still gathering facts and still working on your final opinion. Even so, clients may restate their positions, beliefs, and hopes. You should be polite, listen, but avoid any agreement.

Some clients are more subtle than others. They will not explicitly tell you what opinion they want you to express. They may simply barrage you with their views of how things happened, or what things went wrong, or why things worked as they did or did not. They may express their own opinions about events or personnel or activities, and they will tell you their version of those events. And they hope to affect your opinion.

Stay away from any suggestions of selling your opinions. In court, hired guns are not as likely to have done the research and thereby have the aspects to defend their opinions effectively. Word gets out about which experts, even if credentialed and knowledgeable, will sell their opinion just for their consulting fees. The term "hired gun" is demeaning, and frequently characterizes an expert as disreputable.

How to Avoid Being an Attorney's or a Client's Hired Gun' as an Expert Witness

By: Judd Robbins

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