Successful expert witness testimony doesn’t begin on the witness stand; it begins the moment you become aware you might be retained in a litigation case.
There are ten rules of expert witness file documentation that are critical to your success on the witness stand.
File documentation may seem to be an administrative task, but it is almost as important as the development of your opinion.
There are two foundational premises to understand about being an expert witness:
First, you are in a litigation matter and the other side disagrees with virtually everything your side says. They will do whatever they can do to undermine or discredit your opinion. Understand that reality.
Second, nothing that you do in your work-up of a case – nothing – is privileged from disclosure to the other side.
Those two foundational premises are why proper file documentation is critical.
Good file documentation is knowing what to write down or document in your files, and knowing how to write it.
Let me briefly summarize the 10 rules.
One. You can’t clean up your file the night before your deposition… you will be asked if you removed anything from the file and what you changed in the last few days. And you must truthfully answer the question.
Nothing eliminates your obligation to testify truthfully and completely to your analysis… that is the ethical and legal obligation of an expert witness.
Number two. Proper file documentation begins the moment you pick up the telephone to take a call about a possible new matter. You must realize that the notes of this conversation – and every conversation you undertake in the case – could be used as exhibit 1 in the trial against your testimony.
Three. Therefore, don’t write down irrelevant comments that a lawyer or client might make to you, such as “the other side are a bunch of liars” or “they simply don’t understand the facts of the case.”
Lawyers and clients will frequently make inappropriate comments. When they do, you should ignore those comments and remind those people that conversations with you are not privileged and they should be limited to a discussion of relevant facts related to your specific analysis.
Four. The characterization of file comments is also important.
All file notes should be written with a tone of objectivity, showing that your approach to the substantive issue in the case is detached and unbiased.
For example, if someone tells you an opinionated comment, such as “the windows were faulty and they leaked,” or “the doctor didn’t follow proper procedures”…
Don’t write that down in a conclusionary fashion; write it down in an inquisitive fashion. This indicates your objectivity and willingness to look at the fact to determine if you independently conclude the opinion that was told to you.
If you write down conclusionary comments early in your analysis, those writings will be used against you to infer that you didn’t reach your final conclusion objectively…. That a conclusion was suggested to you and you simply followed that suggestion.
Some other important points about file documentation…
Five. Do not retain preliminary drafts of your analysis; they will be used against you. Adopt the practice of iterating over preliminary analyses.
Six. Do not discard or destroy relevant file notes; learn how to take them properly.
If you destroy notes of meetings and/or conversa- tions, you will be asked, “why did you destroy these notes?”
Seven. Do not write memos of preliminary plans for your analysis.
By definition, these memo- randa are preliminary. Once they are reduced to writing, they become permanent. If they exist, it is improper to remove them from your file. Memos of pre- liminary steps that were either not undertaken or unsuccessfully undertaken will be used against you, possibly as exhibits against you in trial.
Eight. If you have a practice of having senior staff review junior staff’s work, do not consider review notes as part of your file, and don’t retain them. They are simply internal comments to other staff members to correct or enhance their work. Once the review notes have been used for their purpose, they should be discarded.
Nine. Indexing every document in your file and using a system of cross-refenencing is critical.
As the expert, you need to review every page in your file and you need to be able to quickly find the sources of information. A properly and well-documented file is proof of a good analysis and it is typically intimidating to opposing counsel.
Ten. Advise your clients – regularly – that communications with you are not privileged and are subject to discovery., and your email should not have a legend that says “this communication is confidential and privileged,” because it isn’t.
Your email legend should say that email communications with you are “not privileged in cases where you are designated as the expert witness.”
The importance of competent documentation of your litigation files is vital. Improper file documentation can completely undermine an otherwise competent expert witness opinion.
I refer you to my book, mastering the art of expert witness testimony, for a much more thorough discussion of this subject.