Engaging Experts
After 25 years helping litigators find the right expert witnesses, Round Table Group’s network contains some of the world’s greatest experts. On this podcast, we talk to some of them about what’s new in their field of study and their experience as expert witnesses.
Engaging Experts
Engaging with Trial and Appellate Attorney, Kevin Hensley
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In this episode…
Today’s guest is Kevin Hensley, a partner at Barton Gilman where he practices as a trial and appellate attorney on a broad range of matters, including contracts, employment discrimination, indemnity, and more. A published author and frequent presenter, he has been recognized by Best Lawyers in America. Mr. Hensley holds a JD from Boston University.
According to Mr. Hensley, attorneys prefer great communicators, not just a wealth of expertise. No matter how well-versed an expert witness is in their field, an expert’s ability to convey that knowledge effectively and efficiently to the factfinder is paramount. He uses initial phone calls to vet experts’ ability to communicate.
Check out the entire episode for our discussion on experts that go above and beyond, keeping your cool, and preparation.
Expert Witness Introduction
Speaker 1This episode is brought to you by Roundtable Group, the experts on experts. We've been connecting attorneys with experts for over 30 years. Find out more at roundtablegroupcom. Welcome to Engaging Experts. I'm your host, noah Balmer, and today I'm excited to welcome Kevin Hensley to the show. Now. Mr Hensley is a partner at Barton Gilman, where he practices as a trial and appellate attorney on a broad range of matters, including contracts, employment, discrimination, indemnity and more. He's a published author and a frequent presenter and has been recognized by best lawyers in America. Mr Hensley holds a JD from Boston Universe. Mr Hensley, thank you so much for joining me here today on Engaging Experts. Happy to be here, noah Great, let's jump into it. So you've been an attorney since gosh, 1989. When did you first start working with expert witnesses?
Speaker 2Early in my career I didn't use experts a lot. Early on in my career I defended mostly homeowners and a lot of those cases were pretty simple and didn't require a lot of expert consultation. Even medical experts in the early days of my practice I tended not to use. But as my practice developed, got a little more complex, I found that in many cases it's essential to use experts. So that part of my practice has evolved over the years, is it?
Speaker 1just your practice that's evolved, or has the use of experts become more frequent in general among attorneys?
Speaker 2Probably the latter is also true. I think that clients are extra cautious these days on the defense side, which is where I largely practice. There's some concern over increasingly large verdicts and I think that, out of abundance of caution, a lot of my clients would, if in doubt, would prefer to have an expert on board.
Speaker 1How do you decide when you're going to bring an expert in? During a case, I've had some experts tell me hey, you know, I wish the lawyer would give me a little bit more time, they need a report by tomorrow and this. And that Other experts have told me wow, they really give me plenty of time, plenty of heads up. So how do you make the determination? I know, obviously an expert costs money in. The earlier that you bring them on, the more that it's going to cost. So what are the factors that go into making that determination?
Speaker 2Yeah, it's really not much of a cost concern. In fact, sometimes if you bring an expert in too late it's going to cost you more because they're going to have to scramble to catch up. Generally, the earlier the better. That's because experts are helpful not just to provide testimony, but obviously they can be really helpful guiding you through the technical issues in the case case. So I rely on my experts not just to testify but to help me understand the issues, conduct the investigation, sometimes propound discovery that I might not have thought of. So the earlier the better, in my view. Sometimes, of course, you don't recognize the need for an expert until later in the case, but as soon as I spot an issue that I think I'm going to need technical help with, it's my practice to get someone on board as soon as possible.
Speaker 1So is that typically more of a consulting role, or do you bring people in assuming that they might need to testify?
Speaker 2I always assume that they might need to testify, and if they don't, if the case settles or if that issue turns out to be not critical, that's fine. But when I think about retaining an expert, I'm always going to assume that they're going to testify for me, because it could happen.
Speaker 1So what are the main things that you're looking for? What makes a great expert, in your opinion, beyond? Obviously, they have to be knowledgeable in their field, but what are the more intangible factors?
Speaker 2Well, with the thought that the expert may well wind up testifying.
Speaker 2I think that communication skills are probably the most significant feature of an expert, as you say, apart from technical competence.
Speaker 2You know, if an expert is brilliant in their field but can't convey that knowledge to a jury, then it's really a wasted engagement. And you do find that there are experts out there who are brilliant and who understand their area of expertise possibly better than anyone in the world, but I can't use them as an expert because they can't convey what they know to a jury in a way that the jury is going to understand. My experts need to be able to talk to jurors in a way that won't be intimidating, that they'll be able to understand, and that means using as much as possible plain English instead of technical jargon. It's hard for some experts to do, but most of the experts that I use have a knack for it. They understand that jurors aren't technical experts and that jurors aren't going to be able to grasp jargon and lingo that isn't used in common everyday speech. So I think that's probably the most critical thing I'm looking for with an expert that ability to convey their fabulous knowledge to the jury in a way that the jury is going to understand.
Speaker 1You had mentioned before that being an expert witness is partially a teaching role, right, because you're bringing on somebody who has a wealth of experience and something that you probably don't have or might not have, and the jury certainly. You have to assume that they won't have, that they're going to be laypers persons. How do you know during the initial phone call whether or not they are going to have those intangibles, whether or not they are going to be able to teach both you, but you know, more importantly, the jury all of these technical aspects, while still coming across as relatable and without using a lot of jargon, are you able to determine that during the initial phone call? Or does it sometimes happen that you've had an engagement and it turns out that they might not be the best person for the job for that reason?
Speaker 2Yeah, that's definitely happened and it is difficult in an initial phone call to really get that sense. You can get a pretty good idea even in a short phone call if someone comes across as conversational, if they have an easygoing style. That's something that usually you can tell in an initial phone call. But I have had experts where I've gotten pretty far down the road and only at that late point have I learned. You know they actually aren't that great in communicating. Sometimes when that happens it's just too late to switch horses and you sort of have to work with that expert as best you can.
When to Bring in Experts
Speaker 2That has happened to me and I have had experts who have been less than ideal on the witness stand. In an ideal world you would find a new expert and you'd start all over, but sometimes if trial's approaching, you just can't do that. But I do think that I would say in most cases you'll get a pretty good sense in that initial phone call. If the person you're talking to is going to have that knack for speaking in good, plain language, that's going to be understandable for a juror.
Speaker 1Worst case scenario somebody doesn't do a great job or they may have not been, as you said, ideal on the stand, but they want to get better. They want to improve themselves. What are the things expert witnesses can do to become better at conveying their expertise to laypersons?
Speaker 2Well, I think the first thing is just to recognize their audience. Accomplished technical experts are often talking amongst themselves, they're reading technical papers, they're talking to their colleagues and they use their own language when they do that understandably. And it can sometimes be hard to shift gears, but a good expert will be able to do that. So it can take practice. I have the witness I was thinking of that was not having a particularly successful time testifying. You know, when I was working with him we would practice, we'd practice questions and if he gave sort of a jargoned response I'd stop him and say how about this? You know, instead of using the technical term, how about something that the jury can understand? And he did get better. It was never perfect, but in working with him we made some improvements. So practice makes perfect and I think that holds true for communicating with jurors.
Speaker 2You know it's a little bit different when you're in the courtroom on the witness stand as opposed to a practice session with an attorney, and you know that's where an experienced witness sometimes has an advantage. At times an expert who has testified before will have a little better success in the courtroom being used to the give and take with the cross-examining attorney. That said, I've had experts with zero experience testifying and they've done a fabulous job. Just because they're decent people, they're honest, the jury relates to them and while experience testifying can certainly be important, it's not a prerequisite. There's definitely witnesses who have never testified before have done a really good job for me, sometimes better, sometimes better, because they just come across as less rehearsed. They come across as more spontaneous, so that can work too start somewhere.
Speaker 1Everybody's first time is their first time. Let's back up to those initial interviews. So, besides getting a feel for the expert, what are the other sorts of things that you look for in that call? Tell me what a call from Kevin Hensley is like when I first receive it as an expert witness.
Speaker 2Well, I always like to have a Zoom call if possible. An in-person meeting would be ideal, but that's pretty hard to arrange these days. The Zoom calls are fantastic because you get a lot more information with a video than you do just with a phone call. You get a sense of how the witness is going to appear. You pick up on body language, you pick up perhaps on some tics that the witness might have. So an initial Zoom call is just a really great tool to get that initial sense of how the witness comes across. So that's sort of number one. If you can do it on a Zoom call it's much better than a telephone call and that's almost always possible to arrange that these days with the. It's almost always possible to arrange that these days with the omnipotence of Zoom. So what I like to do initially with that call is just have a general conversation at first, talk a little bit about the witness's background, find out a little bit about where they live, what sort of things they like to do. Just a normal conversation to get a sense of how they're going to come across. Things they like to do. Just a normal conversation to get a sense of how they're going to come across.
Speaker 2I like to ask about the split between plaintiff versus defendant work. If a witness does almost exclusively work for defendants, it's not a disqualifier, but it's something to take into consideration. If a witness sort of does equal work for plaintiffs and defendants, that can be a real advantage. You know, when I have this initial call, I'm always thinking in my mind right from the get-go what questions is this witness going to face on cross-examination? And one of those is always well, sir, you know, how much of your work do you do for plaintiffs, how much for defendants? And if there's a nice even split there, that's going to be an advantage.
Speaker 2You know, in this initial call I'll eventually get to the actual subject at hand. I want to find out about how the witness's experience bears on the case that I have. I'll talk about the facts of my case and about the issue that I have, and you know, if possible, I'd like to get some sense of what the witness's opinion might be on my issue. You have to tread a little carefully there. I obviously don't want to tell my witness all right. So what's your opinion going to be? That would be inappropriate and premature. You know there's no way they can get enough information in an initial phone call to formulate an opinion. But I think that often I can at least get some sense of where they're going to come down on an issue, and if so, that can obviously be really helpful. If I have a witness who tells me you know, sorry, I you know, there's no way I could ever give you an opinion like that, I'd say thanks very much and we'd move on. So you know, I want to at least feel out the expert as much as possible as to where they would come in on an issue. I don't expect a final answer, but it's helpful to at least have some feel for how they're going to treat the issue.
Qualities of a Great Expert
Speaker 2A couple of the other things I will sometimes ask about, not always depending on the profession. I might ask if there are any disciplinary proceedings or malpractice actions that I should be aware of. It's a little bit of a sensitive subject, but most experts don't mind. They understand that that's something that we need to know and it's again something that they might be cross-examined on on the stand. And then I want to find out if they're going to have time for the project. You know experts oftentimes are busy and it can be incredibly frustrating if your expert is not responsive, and if they're telling you I'll get to it, and while again you're not going to get a binding answer from your expert, you can at least get a sense if they're going to have time to take on the project you envision. Get a sense if they're going to have time to take on the project you envision. So those are all things that I like to cover in that initial phone call. All of that information can be helpful as you make the decision whether or not to retain the expert.
Speaker 1Are you always the person who first reaches out, or do you sometimes have, like a paralegal or an assistant, do the initial round of interviews with potential experts?
Speaker 2In my practice it's always me, you know. I think that it's essential to have that direct contact with a potential expert and while I might have some help searching for experts from paralegal and staff, the initial interview will always be with me and I have almost exclusively direct communications with the expert, without anyone in between. I don't use paralegals or assistants, other than maybe for scheduling matters. Anything substantive. I'll always talk to the expert. You just never know if there's some little bit of information that might come across in that subsequent phone call and if it's a paralegal or assistant they might miss out on that. So experts are so critical to a case that I want to be the one talking to them.
Speaker 1Absolutely. Let's talk a little bit about confidentiality and privilege. So how do you set up confidentiality vis-a-vis the reports and any paperwork and materials that you give to your expert?
Speaker 2So the rules that I have are this Phone calls are best, phone calls aren't discoverable. And talking on the phone with an expert about his opinions, tentative opinions, further questions, all of that is best done on the telephone. It's kind of the safest way to go. Generally, at least in federal court, and I think in a lot of states your communications with your experts typically are protected typically won't be discoverable. But there are exceptions to that and it's also true that some judges don't necessarily follow the rules.
Speaker 2So anytime you have something in writing with your expert, there's at least some risk that it's going to be discoverable. I always have that in mind. I mean, I do communicate with my experts with emails, but I always have in mind you know what if this got discovered and what if the other side saw this email. And I think if you keep that in the back of your mind you'll be appropriately cautious in what you write. And then, in the unlikely event that that email is discoverable, hopefully it won't be a problem.
Speaker 2You know, I think that the best way to provide facts to an expert is through documents, you know, rather than sending an email to the expert saying here's the facts of the case, what's your opinion, that sort of an email probably is discoverable and I wouldn't want my expert on cross-examination to say, well, I got these facts from the attorney for the defendant there, so you want to send the documents to your expert and then I think you want to have a phone call, you know, after he's had a chance to review them, talk about it. I'm sure I will have my own notes about those documents, my own questions to ask and that dialogue will be very helpful for shaping further investigation and I think if you follow those guide rules you probably won't get in trouble with discovery of your communications with your expert.
Speaker 1Does Zoom and other telepresence software impact that at all? In other words, is there any light between a phone call and a Zoom call in terms of discoverability?
Speaker 2I hadn't really thought about that. I mean, as long as the Zoom call isn't recorded, I treat it the same as a phone call. So I think that that should be fine and nobody should be recording their Zoom calls with their experts. So yeah, I think Zoom phone should be interchangeable.
Speaker 1One of the things you had mentioned is scheduling. You might have somebody help out with scheduling and one of the things you make sure of is that your expert has sufficient time. How do you go about figuring out and estimating what that time may be at the start of a case? If you're just getting started and you bring an expert on early on, how do you go about estimating that's going to be this many hours probably for a report and there might be a deposition and all of that? How do you go about making those sorts of assessments.
Speaker 2It's really case dependent and some cases are much easier than others. A lot of my cases are personal injury defense and, for a medical expert review, fairly easy to estimate based on the volume of medical records. You know that part's pretty easy. An independent medical exam is generally a set fee and generally a set amount of time, so all of that's pretty easy. For experts other than medical experts it can be a lot trickier and sometimes those estimates are a work in progress.
Speaker 2I find that what we think initially is a fairly easy project turns out to grow in complexity and it's not unusual for those kind of estimates to be revised significantly. That can cause a lot of pain for the client who's paying for the expert services, but sometimes it's just unavoidable. You know, the experts I work with I think always in good faith tell me what they think it's going to take. But I recognize that that can change and it, as I say, can be a work in progress. So we do the best we can and we recognize that you know events on the ground might change those circumstances.
Speaker 1When experts try and have a more complicated billing contract to protect themselves from eventualities like going to settlement. Or I've heard experts say that just employing a specific expert who has such a name in their industry might cause a settlement, so they want to put in some minimal amount of money. How do you work with experts to come up with a fair price for their services that make sure that everybody gets paid for the work they do?
Speaker 2Most of the experts I work with charge hourly. We generally don't see per case charges and the hourly rates in the jurisdiction in which I practice. I won't say they're standard but there's certainly a range of reasonability for those rates and we try to keep the experts within those ranges. You know there are experts who insist on non-refundable retainers up front. As long as that's reasonable and as long as my client is agreeable I can work with that.
Expert Selection and Initial Interviews
Speaker 2I don't think a non-refundable retainer should be very big. I don't think you should be paid a lot of money for a one-hour phone call and then the case settles. But reasonable non-refundable retainer is something I can work with and obviously the key is just to have everything in writing up front and as long as everybody understands what the hourly rates are, I rarely run into billing issues with experts. Once in a while I think that somebody has put excessive time into a case and that can cause friction, but I would say most of my cases I don't run into that. I think that somebody has put excessive time into a case and that can cause friction, but I would say most of my cases I don't run into that. I think most of the experts I work with.
Speaker 1they spend the time they need to. They bill for that time and fair is fair. That's not a problem. What I recently wrote an article about time tracking software for expert witnesses and I thought that it might be helpful that a lot of these programs have an audit trail that they can leave that they worked this X number of hours doing something like that. Do attorneys ever audit their clients' time?
Speaker 2So you mean, do we?
Speaker 1audit the experts' time.
Speaker 2The experts' time. Well, only in an informal sense. I mean I don't audit in the sense of demanding documentation for each hour spent. What I will do is, you know, the bill should be itemized by hours spent, and you know, in a rare occasion that I see something that looks really out of line, I'll call the expert and talk about it and what I'll generally say is you know, this seems pretty excessive and I'll tell the expert.
Speaker 2You know, my concern is just really that my client might not want to use you in the future. I'm worried that if I pass this bill along, my client's going to tell me don't use this expert again. And I tell you that generally has an impact. A lot of times they'll say, oh, listen, listen, let me see if I can knock that down a little bit. And so, as I say, oh, listen, listen, let me see if I can knock that down a little bit. And so, as I say, it's rare I have to do that, but that can be an effective strategy and it's not dishonest. I mean, I know that if I pass that bill along to the client, they might well raise a red flag. So try to head that off at the pass to avoid that sort of an issue.
Speaker 1Speaking of reusing expert witnesses, do you have kind of a steady stable of expert witnesses that you prefer to use?
Speaker 2In some cases. Yes, I have medical experts that I've had really good success with and that I like to use when I can. I'm cautious about overuse and so you know, for example, I have five or six orthopedic doctors that I use regularly and I try to make sure that maybe in a given year I wouldn't use an expert more than once or twice. It's still going to be an issue. They're still going to be cross-examined about that and it's something that you know you have to deal with up front. You have to deal with up front.
Speaker 2But if my experts are good, if they're competent, if they're good communicators, I don't think the jury's going to hold it against me that I've used that expert before. The opposing counsel will try to score some points on that and it's something I have to consider. But I think jurors understand that experts are paid, that they do work on multiple and that for the most part it's not going to bother them. You know, if I used an expert 15 times in one year, that's probably more of a red flag for a juror and I would avoid doing that.
Speaker 1Do you have any stories about cases Obviously, you might not be able to divulge the specifics where an expert witness really came into play and changed either the outcome of the case or even the way that you go about presenting cases to juries.
Speaker 2Yeah, I've had a couple of interesting experiences.
Speaker 2I had a case involving a fall off of scaffolding and there was something funny about the plaintiff's description about what happened. So I had a construction expert who was very good and we got together with the client, which was the scaffolding company, and we rebuilt the scaffold exactly as it existed at the time that the plaintiff fell and it was a major undertaking. It took the client and the expert a couple of days to put this scaffolding together and what we found was that it was really unlikely that the plaintiff's accident had happened the way that he said it would Couldn't rule it out completely, but it cast a lot of doubt on the plaintiff's story and that case wound up settling. But that investigation was sort of instrumental in getting a really good settlement on what was a really serious case and I thought that was sort of above and getting a really good settlement on what was a really serious case and I thought that was sort of above and beyond the call of duty and was very impressed with that expert. I've had other experts too who I felt really went above and beyond.
Speaker 2I had a recent case involving an orthopedic injury and my sense was that the injury was not related to the accident and I retained a very good orthopedic surgeon who looked at the records and I expected him to tell me oh yeah, absolutely, there's no way this is related. But he was much more cautious. He said you know, I have some concerns about this, and he and I went through the records together very carefully and narrowed it down to a few key records and after we finished going through them together, he was satisfied. He said yeah, I think I feel good about this now, and that was really impressive to me. It would have been easy for him just to tell me what I wanted to hear and say, yeah, oh, you're absolutely right, and that's one of the things that you don't want from an expert. You don't want them just to tell you what you want to hear, because that's going to end up badly for you at trial. So by taking that extra time, I thought that this expert helped me out a lot. This case is pending, but I'm going to be much more comfortable about this case going forward because of that extra time that the witness spent.
Speaker 2I think that's, you know, a much more general principle, which is one of candor from your expert Really important that they tell you not only the good things about your defense but the bad things as well, those two things I mean. It educates you so that if you go to trial you're not going to get blindsided by something that's in the evidence that your expert didn't point out to you. It may mean that you have to settle the case. It may mean that your expert tells you look, I'm sorry, this is going to be a tough one and I need to know that. You know, I need to know if I have a bad case so that I can tell my client and maybe we do settle it. And the danger would be the expert who wants repeat business tells you what he thinks you want to hear, because that way you'll hire him again.
Speaker 2Most of my experts don't do that. I think it's probably happened a couple of times in my career and you know when I've talked to the expert about it, I've expressed my dissatisfaction. You know I said you know you can't do that. You got to give me the good, the bad and the ugly. And you know when I have an expert who tells me, listen, I'm sorry, I can't help you on this one that you know. When I have an expert who tells me listen. I'm sorry, I can't help you on this one. That's what I want to hear, you know. That's what I need to know and that saves me some real embarrassment in front of a jury.
Speaker 1So maybe it's the case that saying no, I can't do this one, you don't have a case, might help them get another case that they will be helpful for in the future.
Expert Witness Confidentiality and Billing
Speaker 2Oh, absolutely. It actually does two things. It definitely guarantees that I will come to them again. And the other thing that can be helpful is if they do additional work for me and they're on the witness stand being cross-examined and they say, yes, I've handled four or five cases for attorney Hensley and on redirect I can say, doctor, you ever had a case from me that you told me you couldn't help me on? And they'll say, absolutely, I remember several cases with you. I've reviewed the records and I told you this injury is legit and that impresses a jury a lot. It takes the other attorney by surprise. So by shooting straight with me and telling me if I've got a bad case, it actually makes it much easier for me to use that doctor in the future.
Speaker 1When you're doing prep. Is that something that you tell them directly hey, don't blow smoke. I really, really need to know what you think about this. Or is it something that you just kind of look for the sort of person who would naturally do that?
Speaker 2I'd say it's both, but I think that comes up most frequently after the experts reviewed the records, Not so much in the initial call, because I sort of want to assume that they're going to shoot straight with me, but once they've reviewed the records and we have this sort of initial discussion about their thoughts on the case, that's when I will ask at the end of the conversation, if not sooner, what do I need to know that's bad about this case? You know, I just want to make sure they understand. I want to hear that Most of them know that implicitly. But to avoid any miscommunication I'll always say that in that initial phone call. You know what's our problems here, what are the warts on this case, and we'll go over those and that's a crucial part of the process, for sure.
Speaker 1What other preparation do you like to do with expert witnesses for, say, depositions or even trials? Do you ever bring in jury consultants or do you do mock cross examinations? What sorts of preparation techniques do you find to be the most effective?
Speaker 2I've never used jury consultants. I'm probably a bit behind the times in that regard and maybe there will come a time when I will use them. In that regard, and maybe there will come a time when I will use them, I've felt probably somewhat conceitedly that I have a pretty good grasp of juries. I've tried a lot of cases. I've gotten a lot of feedback from jurors. I think someday I'm going to probably have to recognize that I can use some help in that regard, but so far I haven't. When I prepare experts, I think a couple of key tips are one is to have multiple sessions. It's pretty hard to cover everything in one session with an expert and I find that after an hour at most two, both the expert and myself kind of max out and the returns start diminishing. So I try to keep the sessions two hours maximum and then break, and then we'll come back another day, maybe the next day, maybe the next week, to have another session. It sort of lets the case marinate for a little while and then the second session. I think both myself and the expert will have additional thoughts and we might have new ideas that we hadn't thought of During the preparation. I like to talk about the entire case, not just the area that the expert is going to help me out on. Just for an example, I often use an expert who focuses on medical billing and assessing medical bills. That's a really narrow issue, really got nothing to do with the rest of the case, but I like to talk to him at least briefly about what the case is about, so that he knows the name of the plaintiff, he knows what happened to the plaintiff and has a general understanding of what's going on. So if he's cross-examined and he's asked a question might be wildly inappropriate but he might get asked. So what do you think about this accident? Do you know anything about my client? And if I've briefed my witness on that, I won't get up and object, I'll let him answer. He'll say yeah, no, I understand. The plaintiff had a very bad accident, had some really bad injuries, certainly feel very bad for what happened. That's an unexpected answer and I think it would resonate with a jury. So preparing my witness for the entire case I think helps.
Case Studies and Expert Preparation
Speaker 2And then, of course, I definitely want to ask practice questions of my expert during these prep sessions, and that's really for two reasons. One is we want to cover the substantive part of the case so that I know the witness understands the issues. But I also want to test out how he's going to answer the questions. We talked about this initially, this overarching concern with communicating with a jury, and by running through practice questions I can flag answers that are too complex, too pedantic, too wordy, and we can work on those and we can adjust so that the jury's going to understand them. And then the final reason for doing these practice questions is I want to make sure my witness understands, not to fight the other attorney on cross-examination. I don't want my witness to get into arguments with the other attorney. I want him or her to keep their cool. I want them to, if things get heated, to show the jury that they're the ones that are staying calm and that it's the other attorney that's hyperventilating and overreacting and that too can score big points with the jury. So I'll test a little bit. I'll ask some aggressive questions and I want my witness to respond calmly. I want them, if appropriate, use a little humor to deflect some of the cross-examination, and all of that, I think, can be very helpful.
Speaker 2Give you just one final example Noah of one of my favorite expert witnesses was I used to try some lead paint cases, and one of my medical experts was a woman who practiced medicine in Chicago for many years, starting in the 1940s. When I had her on the witness stand she was in her 90s and she looked exactly like your grandmother. She talked exactly like your grandmother. She was the most down-to-earth witness imaginable with decades of experience as a pediatrician. Jurors loved her. The other attorneys feared her, despite the fact that she was a 90-year-old, grandmotherly looking witness. And the reason jurors liked her so much is she talked to them. She talked to them conversationally, she never got upset, she kept her cool, she kept her sense of humor and if I could have a hundred expert witnesses like that one, I don't think I'd ever lose a case. Sadly that isn't possible, but that's just kind of a good way to wrap up. I think the key points for good expert witnesses excellent in front of a jury, excellent substantive knowledge these are the things we're looking for.
Speaker 1One of the things that you brought up earlier that I wanted to ask about quickly was the case with the scaffolding that they went in and rebuilt and at first I thought maybe you were talking about a scale model, but you mean they literally constructed actual scaffolding.
Speaker 2Yes, yeah, this was in a warehouse and it was probably 100 feet by 100 feet footprint. It was probably four stories tall. It was impressive.
Speaker 1How was that communicated Just through a report? Or was that videoed, or how did you go about turning that into an effective demonstrative?
Speaker 2Well, we never went to trial on that one, so we never had to. But what we did was we took pictures, we explained to the attorney for the plaintiff here. This is what it looked like and here's why your client's story is really implausible. And that's as far as it went. That was what we needed to get a good resolution for the case.
Speaker 1In general have demonstratives been pretty effective for you. Do you typically try and do something visual with photographs or PowerPoints, or what have you?
Speaker 2Yeah, I personally stay away from computer visuals unless I really have to. I'm kind of old fashioned. I still like blow ups. I still like blow up photos. I think, to be honest, it conveys the impression that maybe my client doesn't have as much money as the other side has. But I also, just personally, it kind of fits my style a little bit more. I recognize that the world is changing and obviously for some document intensive cases you need to have visual displays. You got to be able to put the documents on the video screens and that's good. That can help a jury as well. But for the most part I tend to keep it pretty simple and low budget.
Speaker 1Before we wrap up, one final question about vetting. I have a lot of experts who have been experts for quite a long time 20, 30, 40, 50 or more years sometimes and they've written a lot. It becomes difficult for them to keep track of every article that they've ever written on a topic or any note that they've ever put on the internet. How do you make sure, when you are first deciding whether or not to use an expert, that they haven't said something that's contrary to the way that you want your case to go? Do you just rely on them to tell you or do you do some extensive online vetting?
Speaker 2Yeah, it depends on the case and on the importance of the case. First of all, I ask them, of course, and see if there's anything I need to know about, and then you know, I will generally do a search through prior testimony. There's a lot of databases online where expert testimony is available. I think that's probably the most important thing. It can be tough, to be honest, at times where an expert has 300 published journal articles to go through all those. If the case was important enough, I'd probably get some assistance and do that In a ordinary case. That can sometimes be pretty hard to do. Searching prior testimony, though, is critical, and anything that's available to the other side on the internet is something I want to look at. That's typically my focus when I'm vetting an expert.
Speaker 1Absolutely Any last advice for expert witnesses.
Speaker 2Well, no, I think we've covered most of it. I think it comes back to. The big picture is that the best expert in the world is not going to be helpful to you unless they can convey their opinions effectively to a jury. I think that's probably how I'd leave it.
Speaker 1Absolutely, Mr Hensley. Thank you so much for joining me here today.
Speaker 2Thanks, noah, it's been a pleasure.
Speaker 1And thank you to our listeners for joining us for another episode of Engaging Experts Cheers. Thank you for listening to our podcast, Engaging Experts. Our show notes are available on our website, roundhumorgroupcom.