Be Smart About Your Dealings With Experts
What I hated most about being a defense lawyer was that 75% of the work that you did seemed to have nothing to do with getting a good result in the case. Instead, we were always working to make our firm look good to the client. (Note: I was never very good at that anyway because the filter I had to root out all of the things that I thought but should have said was somewhat defective.) They talk about doctors practicing defensive medicine. Defense lawyer practice defensive law about 10 times worse that doctors practice defensive medicine. Anyway, the one that about the defensive practice of law (if you have not heard that expression before, I just made it up 2 minutes ago) is that it does keep you on guard. Plaintiffs' lawyers tend to be more relaxed and more focused on what really matters.This is usually a good thing. Where it can go wrong is in dealings with experts. When I was a defense lawyer, I can't tell you how many times we would find a "nice fishing with you on Thursday" or "great having dinner with you" line in correspondence from a personal injury lawyer to his/her expert. I never tried a case with that kind of ammo. But it sure would be fun. The take home message of all of this is do not send a letter, email or even leave a telephone message to an expert (or fact witness) that you would not like to read to a jury. Smart defense lawyers always subpoena an expert's entire file and even if the substance is innocent, it is going to be take out of context.
Hey, Ron ... without commenting on which side of the lawsuit generates the most useless effort, my response to your real point is two-fold ...
(1) Every lawyer should obtain every scrap of paper exchanged between counsel and the expert, and that seems to be the default in discovery nowadays ... And no lawyer, regardless of side, should let anything stupid slip into an expert's file ...
(2) That said, I think juries deserve a little more credit than your post might indicate ... Unless the smoking gun had was a lot more directly related to the case ("here's what I think your opinion should be on X ..."), I don't think a modern jury would be too distracted by a dinner or fishing trip.
Really? Because I think if an expert is social friends with a lawyer, it substantially hurts the expert's credibility. Everyone tries to take care of their friends, right? If I were on a jury, I would suspect that either consciously or unconsciously, the expert's opinions were moved by that friendship.
Thanks for the comment, Larry.