IMS’ own Erica Evans discusses jury-friendly expert witnesses, post-pandemic trends, tips for new expert witnesses, and supporting teams in the workplace. Listen above or read the transcript below. (Part 2 of 2)
Hello and welcome to the IMS Insights Podcast. I’m your host, Adam Bloomberg. Today, we’re speaking with IMS Director of Expert Search Services, Erica Evans, about the importance of jury-friendly expert witnesses, post-pandemic trends, tips for new expert witnesses, and encouraging and supporting teams in the workplace.
Erica Evans develops winning expert witness search strategies for high-stakes matters across industries, including banking, securities, finance, cybersecurity, pharmaceutical, manufacturing, technology, and healthcare. Under her leadership, the expert search team locates subject matter authorities precisely aligned to the needs of Am Law 100 litigators and corporate clients.
Adam Bloomberg:
I am guessing you've got some crazy stories about some experts, but I’m not going to ask you that here.
Adam Bloomberg:
So, what are some red flags when vetting an expert?
Erica Evans:
General red flags include any skeleton you know that might be considered a deal-breaker in a client's mind, like a successful Daubert challenge like I mentioned, or criminal history, or even someone who we feel would not be able to successfully testify on the stand or be able to take, you know, complex issues and speak to them in layman's terms, in a way a jury might be able to understand. So, you know, expertise is one thing, but an expert must also be able to teach and educate a judge or jury clearly and concisely. And, vetting an expert oftentimes comes down to gut feeling. So, will this expert’s presentation style match the need of the client.? Is this expert trustworthy; are they flexible—meaning, are they easy to work with, and can they adapt to changes transparently?
Erica Evans:
Are they credible, likable, knowledgeable, and can they use simple terms to clearly describe the technology or product at issue? If the answer to any of those is no, we might hesitate to present that expert to the client. Aside from that, though, it's also a red flag if the recruiter simply leaves their initial call with the candidate and they are unable to confidently speak about whether that expert is an authority in their field; and how they came to be an expert. So, you know, we're ultimately also looking for experts who can clearly define how they've come to be an expert in that space.
Adam Bloomberg:
So how do you assess if an expert can communicate complex subject matter and maybe the associated technicalities of a subject to a jury during trial? I mean, I call it “jury-friendly.” How are they able to process and to be able to describe, and explain technology in a jury-friendly way?
Erica Evans:
So, a good tell of whether an expert is able to do this is simply understanding how experienced they truly are in the field in question. And you know, we do have an extensive vetting process in which we're really diving deep into an expert's background to ensure they're the most closely aligned fit for that client’s needs. It's not simply a matter of asking, “Are you an expert in ‘XYZ’?” And them answering, “Yes” or “No” to that. Our recruiting team is tasked with vetting in a way that uncovers the breadth and depth of that expert’s knowledge and experience — so meaning, we leave each call determining whether that person is truly an expert.
Erica Evans:
How many years of expertise they have, how they came to be an expert in the field? We also ask that they described times, you know, when they came across an issue involving whatever key dispute is present in the case at hand. We ask what their education background is, whether they have publications or awards or memberships or patents in the field. Maybe, whether they've taught on the subject, or if they've written articles or white papers on the topic, and so on. And so, throughout that process and when we asked them to discuss their background, we're listening for whether they can give concrete examples of their relevant experience.
Erica Evans:
You know, overall, it's important for an expert to be able to speak in layman's terms and also to explain those key concepts clearly and simply. And we're always on the lookout for that.
Adam Bloomberg:
Knowing that the vast majority of cases don't actually ever end up in a courtroom, what are some other ways that an expert can be an asset to an attorney’s case.
Erica Evans:
Let me take the question in two different directions, so at least from my experience. You know non testifying or consulting experts can also be of assistance to counsel by maybe guiding them on who is the best testifying expert to retain—meaning they might help evaluate backgrounds or share their opinion on which expert types might be best utilized in terms of tackling the necessary issues in court.
Erica Evans:
A consulting-only expert can help the legal team choose a testifying expert, review data and case materials, maybe serve as a backup to the testifier if they're unable to attend trial, maybe provide their insight on technical or complex ideas and issues. And you know, it's not uncommon for our clients to request we locate both a testifying and consulting-only expert, and we also have experts who simply prefer to work in a consulting-only capacity, which may be best for those who don't wish to be disclosed to the court.
Erica Evans:
If we look at that question, though, from a different angle—like you mentioned—we might also consider what a testifying expert does for counsel when they aren't actively on the stand, and under those circumstances, does the expert, you know, typically spend ample time also educating the attorney and legal team on their subject matter relevant to the case.
Adam Bloomberg:
So, what should the attorney look for before making that final decision on which experts to engage in their case?
Erica Evans:
I would say counsel should look at several factors, including is the expert likable, are they credible, both—are they confident and knowledgeable, and does the expert possess engaging communication skills and flexibility? And you know, can this expert support my case as the litigating attorney. Something incredibly helpful: is their skill set best aligned with the key issues of the matter?
Adam Bloomberg:
What are some crucial elements in a deposition that really distinguish a good expert from a great expert?
Erica Evans:
Speaking generally in terms of what distinguishes a good expert from a great expert, we've received tons of feedback from our clients about what stood out most to them, but also from our experts about what allowed them to be successful. So, for instance, experts who felt they did well commend our attorney clients on being, you know, communicative and responsive from the beginning to the end of the case, and in those examples that allowed the experts to have ample time for review and research, reports, whatever it may be. Other feedback from experts has included that all information needed for them to successfully testify was provided. So, for example, no details or documents were withheld from discovery. And many of our new experts mentioned that their success was possible because counsel simply prepared them well for deposition and trial.
Erica Evans:
Speaking from my own experience, though, you know the difference between a good and great expert witness comes down to them being able to testify to those complex subject matters clearly but in a way that the judge and jury can understand without also coming across in an egotistical way. We've also received feedback from our experts with respect to, you know, maybe the use of graphics and visuals as being an imperative and helping them transform those complex fact patterns, and you know, maybe complicated technical issues or matters into easily understood and compelling visual presentations at court. And we actually have active projects now where our clients sought us out for not only expert witness search purposes but also to provide trial graphics. And you know, as I mentioned, we've received positive enforcement from our expert partners, as well as it relates to their desire to use graphics. And one expert specifically comes to mind that our wonderful engagement services team worked alongside. This expert specializes in neural engineering and has been particularly fixated on using visual aids that trial and feels there is a strong benefit in doing so.
Erica Evans:
In one case, you know, he had essentially built models of the spinal cord, and he wanted to present that to the jury, and, you know, this expert felt strongly that using those models would benefit the case because it would give the jurors that were visual learners a better understanding of his overall opinion.
Adam Bloomberg:
Alright, so next I wanted to talk to you a little bit about the pandemic, and this is, I had a funny conversation with one of our client relationship managers the other day.
Adam Bloomberg:
Pre-COVID, nobody wanted to be on Zoom calls. During COVID, everybody's on the Zoom call. Now, I think we can call it post-COVID or some form of it. Now, we're back to experts and attorneys and clients… They want to be on phone calls a little more now that we're post. But, what are some of the trends and changes that you've noticed in placing expert witnesses, maybe before the pandemic and after?
Erica Evans:
So, one thing I can say is we are just as busy as ever, if not even busier than ever before, in terms of case volume and number of experts engaged each month. What we've noticed, though, is our experts are also busy. And you know, because we've been in this business for so long, we've developed relationships with experts across various industries, and we've had the luxury of working with them across multiple cases, but what we've noticed that is happening as we get an increasingly busier, so do they which makes the matching of projects a little more challenging. And in that, we are now competing for their availability to assist with new cases. Aside from the pace of work, though, it would also seem that post-pandemic litigation is becoming more of a norm of remote deposition and then, you know, maybe in-person trial.
Erica Evans:
So, for example, we've heard from a couple of experts who shared that they experienced virtual depositions, and they projected that the success and benefit of those virtual depos would create a continuation of those depositions being virtual and being preferred by the court. On the other hand, though, they've shared that in-person trial seems to be the preferred approach by the court, at least at this point.
Adam Bloomberg:
Speaking with the experts that you've placed, probably in the last two years, and now you've got experts who have testified in a trial by Zoom. And then obviously you've got experts that before the pandemic and now after, or again in part of this post-pandemic, who are going either in hybrid or back to in person. Do you have any sense of the way an expert presents? Is that different in a virtual setting? And I’m not necessarily talking about graphics they use, but how, you know, are they making sure to make eye contact with the jury? How they wait for questions; do you have any insights on how your experts like or dislike either of those venues, the virtual, the hybrid, or the in-person?
Erica Evans:
From what I’ve heard from our experts, it seems to be very similar to what we've experienced just generally in the workforce, and so you kind of have to be a little more in tune with the way that you're presenting when it's virtual. And so they have shared that they have to be mindful of, you know, waiting for those kinds of cues to speak, waiting for the question to be done before they jump in—which is a little bit different than when you're in person, right? And a little more challenging actually, and then they are so used to being incredibly professional and prepared, and in that sense, they are testifying and they're still trying to bring that in this remote setting. And it can be a little bit more difficult to do so. So, it's kind of mindfulness, I think, and I would say we've experienced that in the workforce.
Erica Evans:
But also, the experts that I’ve heard that have testified, they have to be kind of more in tune with the way they present their professionalism as they present. And just kind of being prepared for that type of interaction.
Adam Bloomberg:
So what should a new expert know about being engaged for the first time or somebody who's looking to enter the world of being an expert witness?
Erica Evans:
For experts being retained with IMS for the first time, I would want to remind them that we are partners with them on every engagement. We're very much their back-office service, and you know we're handling all the contracting and invoicing and payments on their behalf. So if retained on a project, the expert is assigned to a dedicated engagement manager, and they're staying in touch with them throughout the life of the engagement.
So they're really there to ensure things are running smoothly to assist with anything the expert might need—but also our law firm clients are there to ensure experts are well prepared for their work on the case. So, I would say it's important to remember that as an expert, you are to remain unbiased and only provide opinions based on the facts of the case. So you know, this requires giving opinions based on fact or proven scientific methods. So, of course, you know, an expert testifies because they have the knowledge, skill, experience, training, or education to do so, and they also have expertise that may be meaningful to a party attempting to prove its side of the case. So you know the expert’s not called to testify because of some sort of prior involvement and activities that precipitated the litigation, but they're testifying voluntarily.
Erica Evans:
And so they can make or break the client’s case, and a strong expert can strengthen and provide credibility to a client's case. And so I would ask that, you know, they also remember that expertise alone is not enough, and the best expert witnesses are those who can successfully convey their knowledge in the courtroom. And you know the best witnesses know, and I would tell new experts entering into this world as well, that expert witnesses are there to educate the court on their subject matter relevant to the case. And they are there to remain unbiased in doing so.
Adam Bloomberg:
So, last question, I know you're running a large organization, and there are lots of moving parts on a daily basis for you. How would you describe your approach to leadership, and maybe, how do you drive and support your team at the same time?
Erica Evans:
As a leader, I would say that I am always learning from my team and growing in a way that allows me to lead and work alongside this truly brilliant team in the best and most efficient way possible. And so my approach to leadership is not so much about me but is instead about all of them. So with that, my approach is to focus on listening. I really place heavy emphasis on continuing to improve my ability to know when to speak, and you know, to know when to listen. So, I make an effort to pay attention to the needs of my team, and not just on having, you know, the most prominent presence. But I guess aside from active listening, I support my team by, you know, simply knowing them as people, fostering transparency to the highest extent possible, allowing their voices to be heard, and you know, by creating clear objectives. And then, of course, by celebrating all of their success.
Adam Bloomberg:
Erica, thank you, this has been a great conversation. Thank you so much for your time today and for sharing the wealth of knowledge that you have when it comes to expert witness placement.
Erica Evans:
Great, thanks so much, Adam, it's been a pleasure.
Thank you to Erica Evans for speaking with us today, and a special thanks to our listeners. At IMS, we’re trusted to deliver integrated trial services for the most influential global firms. It’s been our privilege to serve our clients on more than 20,000 cases and over 2,000 trials. Be sure to subscribe to our podcast and join us next time on the IMS Insights Podcast.
View this content on The National Law Review: Importance of Jury-Friendly Expert Witnesses Podcast (natlawreview.com)
