Understanding the Legal Pitfalls of Expert Witness Discussions and Meetings
In simple terms, the expert investigation and analysis begins with your initial conversation with an attorney or a client. More frequently than not, this first contact will be from the attorney but sometimes the client makes the call in order to be sure you truly understand the on point technical matter.
Early contact like this, as well as ongoing contacts with the client, can lead to interesting problems. During preliminary discussions, the client may share confidential company facts or data about the case you should not have. Other times, data is revealed a month or a year later. In either case, the problem can be avoided if you make sure the attorney is present so the conversation will remain privileged.
You should not chat with the client about the case without the attorney present. In that event, the conversation is privileged and you will not have to share its contents to the other side.
Opposing attorneys are allowed to ask you questions about the subject matter of any conversations you have had with the client alone. The revelations that come from that testimony are not always desirable. The same is true for the occasional conversation you may have with persons working for the other side - maybe a chat with another expert, a client, or a researcher during a meeting. Talking to no one but your attorney is best, especially if the other expert is a fellow professional with whom you are familiar, or a friend. The less you say to anyone on the other side, the better.
An interview can happen spontaneously or as a planned part of your investigation. You may be on the premises of your client's company or where the event you are researching took place. You may be at a factory trying to understand an entire system in operation. Many times you will meet people who were present on the day of the event in question, and they may have valuable data.
Use open ended questions when you chat with people in spontaneous interviews. Ask them simply what they can tell you about how the system works, or how employees do their work. You can ask people what they do, how the company works, how their department works, or how the machinery and systems work. These open ended questions invite people to tell you what they know, which constitutes much of what you need to learn.
Remember: you are seeking the truth during your interviews but you may not easily discover that truth when asking questions. People will not remember facts, or will remember incorrectly. You are the expert; you have to decide how to piece the facts together as you obtain them. You should always be cordial to the people with whom you speak or interview. If it's unpleasant speaking with you, they may duck out of interviews quickly.
Depending on the experience you bring to the table, you may research events, people, equipment, software, and procedures - anything relevant to the matter. It will help if you can blend in, so wearing a suit that works for a deposition may be inappropriate when doing field research. That same suit may put off the people working in jeans or overalls. Just dress appropriately for the people you will likely meet.
You are also not there to chat about yesterday's baseball game, football game or the weather. Light banter may be okay, but don't spend time trying to become friends. You are researching a case and soliciting data. Act professionally. If you are less chatty, then the people with whom you speak will be chattier. You will have allowed them more time to give you more facts.
frequently these people with whom you speak want to know about the case and will ask you what you think. No matter how casually they pose the question, they are still hoping to figure out your opinion. Never give that opinion to anyone other than your attorney, and do not propose it to your attorney until you have finished your research. While gathering data, you should have no opinion. Politely reply to any inquiry that you are just conducting research and gathering facts. In reality, you will only deliver this opinion to your attorney.
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