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 Intellectual Property Lawyer, Mark McKenna
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In this episode…
Our guest, Mark McKenna is a law professor at UCLA and a partner at Lex Lumina, LLP, a full-service law firm. He’s a sought-after IP expert with numerous publications and holds a JD from the University of Virginia.
As both an expert witness, and an attorney who uses them, Professor McKenna has a unique perspective into both. He recommends staying vigilant as an expert, to avoid crossing over from expert opinions to legal opinions. If you have suggestions that may aid in trial strategy, work with your attorney outside of court to incorporate them where appropriate.
Check out the full episode for our discussion on changing technology, international arbitration, and travel expenses.
Introduction to Professor McKenna
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.
Speaker 2Welcome to Engaging Experts. I'm your host, Noel Balmer, and today I'm excited to welcome Professor Mark McKenna to the show. Professor McKenna is a professor of law at UCLA and a partner at Lex Lumina LLP, a full service law firm. He's a sought after IP expert with numerous publications and holds a JD from the University of Virginia. Professor McKenna, thank you so much for joining me here today on Engaging Experts. Thanks very much for having me. Of course, let's jump into it. You've been an attorney for gosh about 25 years and a professor for nearly as long. How did you first get involved in expert witnessing?
Getting Started as an Expert Witness
Speaker 1Yeah, thank you. So you're right, it's actually my 25th reunion this year, so the number starts to catch me by surprise a little bit. But yeah, so I was a full-time practicing IP attorney in Chicago for three years when I got out of law school. I was very lucky to work at a firm with some really great, smart people and people who, I think, gave me a running start in terms of thinking about real expertise in a subject area. And then I started teaching and I think the answer is like I got into expert witnessing sort of just because at some point people started calling me and I assume I assume that's true for many people, but, like in my case, I think it was, you know, I had a particular kind of subject area focus that I've always written in and that was the origin of, you know, original expert witnessing. And then I think after that it's, you know, as I've gotten further into my career and done more practice of my own and, you know, met more other people, I think then it just becomes a little more word of mouth.
Speaker 2So it's not something that you're actively seeking out.
Speaker 1No, actually I think the first time I got called it was a former student of mine who was working at a firm and they had a case that you know that it was an area that I was working in and just kind of went from there. So no, I never really kind of actively sought it out, but I but I do like doing it, you know, when it's when it's a good fit and it's the right you know kind of subject area. For me it's a good sort of muscle to to, you know, flex in your brain a little bit In your practice as an attorney, have you utilized expert witnesses at all?
Speaker 1Yeah, A number of times. I mean, in trademark cases we work with survey experts a lot. We've worked with experts who you know, who have more marketing expertise, who are, you know, experts in thinking about, like, the channels of trade that goods get sold in. Sometimes there's some really good damages experts out there, so used all of those. And then obviously in other kinds of IP cases you have different experts. I was involved in a big design patent case where one of the questions was about the validity of the claim design patent and so we worked with a person who used to be an automobile designer for a long time on sort of how do automobile designers go about designing new fenders?
Speaker 2What's it like being on the other end of that phone call.
Speaker 1Go about designing new fenders. What's it like being on the other end of that phone call? Yeah, you know, because I practice as a lawyer, I have the perspective of knowing sort of what it's like to be deposed, what it's like to be in the witness chair and also kind of what lawyers are looking for when they're using experts. And I find that very helpful to me because I think I'm less surprised, I think, by lines of questions and I'm also more, I have a better sense when I work with experts as a lawyer, what the concerns, considerations are that experts are bringing and how to ask them questions in ways that let them, you know, really show their expertise and get you the kind of answers you're looking for.
Speaker 2How do you cordon off the lawyer half of your brain when you're acting as an expert witness? You know, obviously you have your own ideas about trial strategy and about trial teams and everything else, but at the end of the day, you're working well. Ultimately, we're all working for the neutral truth as a as an expert witness. But how do you you know interact with an attorney without crossing any of those boundaries?
Speaker 1Yeah, no, it's, it's a really good question.
Speaker 1I mean, it's like it's, it's a question of the role.
Speaker 1You do have to be conscious of the role and you have to be conscious of, like, staying in your lane.
Speaker 1For me, a big part of that, to be honest with you, is like I, you know, having been a lawyer and used experts a lot, I never want to be in the position of an expert, as an expert, of being called out for having left my lane Right, and so I, um, I'm very I try to be very conscious of you know, what are the things that I feel are I'm capable of talking about, that are within my area of expertise, that are appropriate for the case, um, and you know, uh, when I don't feel like I can do that, um, just trying to be candid with the lawyers about what you know, these are the things I feel like I could say in good faith, and these are the ones that I can't. And then you know, if this trial strategy is like helpful, then that's a different kind of expert role that I've also sometimes play, which is like a consulting expert rather than being a testifying expert, and I like that role too.
Speaker 1It's just a different one, and so you have to kind of be clear about which one you're in.
Navigating Expert Witness Boundaries
Speaker 2Are there any unique considerations vis-a-vis like Dobert challenges or, you know, just impeaching your expertise in general, that comes along with being a lawyer and an expert witness at the same time.
Speaker 1Yeah, I think for me, the thing that I try to be the most conscious of is, like, making sure that when I'm acting as an expert, that I'm not crossing the line and making legal argument right, because that's not, that's not the role of an expert and it's also but because I do that in the rest of my life, I think it's a thing I that I try to be very conscious about and be sure, like am I giving expert testimony on something other than what the legal argument is? You know there are, there are some unique circumstances. I've been an expert in international arbitrations where actually the thing that I'm hired to do is opine on the legal questions, like because that's relevant. But when you're when you're doing it in federal court, then you know it's a different, it's a different role, and so I think for me, having both of those paths, that's the thing I try to be most aware of.
Speaker 2Arbitration and alternative dispute resolution are an interesting topic. What are the differences between being an expert witness in a typical court matter versus arbitration?
Speaker 1Yeah, I mean. So I think that that is the biggest one, which is that sometimes in arbitrations you get hired to be an expert on the law, especially when you're when it's an international dispute like that and so. So that's different, because you know you're trying to. For me it's like you know, because I'm also, you know, my full-time job is as a law professor. Sometimes I feel like in the international arbitration context, what you're doing is like treatise writing. Right, it's like you're trying to do the best job you can to explain the legal principles in the case, but not making the legal argument more. Just being like this is sort of how I think, the best understanding of what the legal rules are and how they would apply in this circumstance.
Speaker 1Usually in an ordinary litigation in federal court, that's not the role of an expert. That's what you do in legal briefs, and so what the expert is doing is bringing expertise that might be on particular questions. So I've been an expert in a case where the question that I was involved with was about fraud on the trademark office and what I was being asked to do is kind of explain how file histories work at the trademark office and how the trademark office deals with those. So you need somebody who has lots of experience with the legal system. But I wasn't making the argument about fraud. I was trying to explain the context in which, like, some of these things were being presented. So I think that's the biggest difference. And I would also say you know arbitrations. You know almost always, when I've done an arbitration, I'm writing a declaration or I'm writing a report, there's there's not live testimony, there's not depositions, and so you know there's differences, obviously, in the what's entailed and doing it and that was a big difference is state and federal court too.
Speaker 2It's a more streamlined process. For sure, have you done a lot of international work or work in venues outside of your hometown?
Speaker 1I haven't done a lot of them.
Speaker 1I think I've been an expert in.
Court vs. Arbitration Differences
Speaker 1In a case that was filed in the United Kingdom there was a trademark slash kind of what we would call in the United States like a right of publicity case, but mostly as a trademark case over there between someone who had created a fashion line and used her own name as the trademark and then had sold that company, including with its trademarks, to somebody else. But then the fashion designer, being a designer, wanted to also continue being able to make other clothes and use her and use their name, and so this conflict arose right between the party that had acquired the company with her name and her acting as a designer. So I've done that a little bit where you know. So where I can do, that that's it's. I find it really interesting to do the international work because sometimes it gives you a nice little exposure to the way things are or are not the same in different places. But yeah, I think people who do a lot of international arbitration work, that's kind of a lane that they find themselves in a lot find themselves in.
Speaker 2A lot Is the international arbitration situation similar to the UK legal system in as much as they tend to have court appointed experts rather than party appointed experts.
Speaker 1In the case that I'm talking about, that, I was hired in the UK. I was hired by party, so but I do think you're right that the UK system in general is a little bit more skeptical of privately hired experts and is more likely to do what you're describing. In fact, I think in the trademark context, the UK often will just be like there won't be surveys. In this case, there won't be survey experts. Some of that's a cost question, but some of it, I think, is also, you know, questions about what party driven expert witnessing means in a case.
Speaker 2Absolutely. I recently wrote an article about Rule 706 style court appointed experts. It's not something that comes up very often, but it's something that can happen, and it did remind me of the UK legal system a little bit the way that they do that.
Speaker 1Having done this a long enough time now, I now know a number of people who are federal judges, including friends and classmates of mine. I actually think a lot could be gained in a lot of American context at least the ones I know best by having the court hire the expert and and going that that route. I think we might get less strategic expert witnessing that way and I think we might get better information, and then, of course, the parties could both participate in sort of like interrogating that. But I think so. I would actually love to see more of that. And and you're right, and you're right the courts have the power, federal courts have the power to do it.
Speaker 2Absolutely fascinating topic. Let's talk a little bit about preparation. When you are getting ready as an expert witness for cross-examination, what are the sorts of things that you like to see an attorney do? And also, as an attorney, what do you like to do to prepare experts for difficult cross or for depositions or for any really tense situations in court?
Speaker 1in that, respect, because sometimes the tension that comes from that experience is like unfamiliarity with what the litigation process is like or unfamiliarity about kind of where questions might be coming from. But because I've been a lawyer, on that side I think I get less surprised by what, and so that just brings me, depending on what you're after. I just mean I think it takes the temperature down for me a little bit. On that, I would say, like you know, when I'm an expert, the thing I most want from the lawyers who've hired me is I want to make sure that I don't get surprised by something you know, like I want. I want to be as well prepared in terms of like I want to see all the documents that are relevant.
Speaker 1I don't want you to characterize them to me. I want to read them right. I want to. I want to read them right. I want to. I want to have a sense of you know where, where am I saying something, that I'm making an inference, versus like something else. So that's the biggest thing I want is like I I want not not to be surprised and cross. I think those are the the times that are the hardest and the frustrate If you know what's coming and you know, kind of like you know, these are the things that I think are the right answers, and also I think these are the ones where I acknowledge that there's either the most uncertainty or there's the most, and I think, if you're prepared to do that, a lot of what happens on cross-examination is theater. It's not.
Speaker 2As expert witnesses, do you find it best for them to just simply answer the questions yes or no, and that if there's a problem, if they feel that there's any conflict in their head, to just let the attorney clean it up on cross? Or should the experts be trying to inject a little bit of this and that if they can kind of see where it's going?
Speaker 1Yeah, I think that's a hard question to answer, in the abstract, I think, because I'm going to say something very lawyer-y, which is, I think it really depends.
Speaker 1Sure, I think as an expert, you should never be cornered into answering a question yes or no when it's not a yes or no question.
Speaker 1And I think something that the lawyers often do to try to twist what experts are doing is to ask questions in a way that flatten out ambiguities or flatten out complexity, and I know why they do that as a lawyer. But so I think you know experts should not give in to treating questions as yes or no questions when they're not yes or no questions. On the other hand, like I think it's usually a mistake for an expert to try too hard to advocate on behalf and to be seen like they're fighting, I think it's much more effective, in my experience, to try to be professorial about it and to say these are, these are the things that I, you know, that I that are important to my opinion, that I, that I, that I believe. And then there's these are areas where, you know, maybe it's more complicated than that, and so in those cases, sometimes fighting the yes or no um can come across as being more argumentative than is usually helpful.
Preparation and Cross-Examination
Speaker 2Let's talk logistics for a moment. When you bring on an expert witness or when you are an expert witness, how do you manage your time? How do you make sure that, when you give an estimate of what you expect there to be in terms of time commitment, that is going to be accurate?
Speaker 1Yeah, I mean. So part of the answer to this is just experience. Like I had a case where I was an expert, I don't know 15 years ago or something, and the case went to trial to my eye, sort of unexpectedly. I kind of expected it would settle. And I remember I got a call from the lawyers like two weeks before and they were like well, you just need to come to New York for these few weeks. And I was like my life doesn't work like that. Like I'm in the middle of a semester, I'm teaching no-transcript and does that match my life?
Speaker 1Consistent things. You know that you get hired as an expert to do a certain kind of report over and over. Then it's I think it's much easier for me to anticipate how much time it's going to take me to do that. I will say that my experience of that over time earlier in my career was I always underestimated, always underestimated, and the reports always took me longer to write than I thought they were going to take. And you know I's this like you don't want to. You don't want to like give an estimate, where you're like it's just some gigantic number of hours, but on the other hand, like you don't want to do a sloppy job on something, and so it always took me longer.
Speaker 1I think I have a much better handle on that and knowing how, but there's there, there are some important things that are not in your control.
Speaker 1Like, I don't know how many documents I'm going to need to read until I get a better sense of what the case is or what I'm being asked to do.
Speaker 1You know now that with electronic discovery and it's so much easier to get so many documents, there's sometimes cases where the fact that you can get them mean there are, there are a lot of them right depends on what you're being asked to do. But, uh, so that that that part of it I feel like is, um, always a little more of a guess, because you just don't know. And then, of course, the things you don't know about, um, you know how long does the other side want think they're going to depose you right, and how long you know on what topics and um. So, yeah, I think it's right you, you get better at budgeting time. I get, I've gotten a lot better, I think, at understanding kind of how it fits into the rest of my life, but also, like you, just I think, have to know that, like every litigator, like, there are things that happen in litigation that are not easy to completely predict.
Speaker 2You mentioned electronic discovery. In what ways has technology changed? You've been doing this for a hot minute now. Quarter century, that makes it sound really long. What are some of the differences? You know telepresence. We have AI happening. Now we have electronic discovery. What are some of the main differences between when you first started and now, and are they for the better?
Speaker 1I mean, the most obvious thing to say about what's different is that you know, when I started as a young associate, the way you did discovery was you would like. I literally sat in a room with boxes of documents and I and I read them and I hoped I knew what I was looking for. And that's not how it works now. I mean the first cut at all this stuff is done electronically and obviously people are still reviewing and looking at it, but it's all through. Some you know document management system and it's all. So I think the volume of documents has gone up a lot, but also the tools for trying to search or continue to get better and doing it, the lawyers who really know what they're doing. That's probably a little bit. We asked if it's if it's for good or bad, like I think that's the answer to that is a little bit of both. Right, it's like an explosion in the volume of documents is probably makes cases more expensive and longer than maybe they need to be, but also the tools keep getting better at figuring out how to know what you're looking for. Right, you know what the old system of associates sits with a box of documents and hopes they don't turn over privileged documents depends on you having some confidence that you know who all the people are right and what all the names are you supposed to look for. And now you don't need to do that because you can search on the names and you can easily find it.
Speaker 1Huge differences in the way that cases get presented, in terms of courtroom technology and that kind of stuff, and that, I think, is, um, also a mixed bag, right, it's like way, way easier to use digital technology in the courtroom. It's way easier to, um, turn information into the court. But you know, as anybody who practices knows, the court systems are not great. Courtroom technologies vary enormously. Sometimes it might be better just to like use a piece of paper. So, yeah, I mean, I mean like the same thing everything I just said I could say about the classroom too. Right, classrooms are way more technology. So it's, it's just, we're just living in a different world that way.
Speaker 2Yeah, that's a. That's an interesting parallel between academia and, obviously, working in court. What are some of the things that you do as as a professor that aid you your performance in court? What are some of the things that you do as a professor that aid your performance in court, both as an attorney and as an expert witness?
Speaker 1Yeah, well, I guess I would say that the thing that being a teacher helps me most with is that I'm very used to talking about complex topics with people who don't know a lot about them yet. Right, and I'm like my students. My students are really really smart kids, most of them. Not kids I shouldn't, but they're. They're really smart, you know so, and they're not. You know they're not starting at ground zero.
Technology's Impact on Litigation
Speaker 1I mean, I teach a first year torts class which is closer to ground zero, but you know, everybody who I have as a in any of my IP courses trademarks or design law or copyright or any of those like those are students who are you know they have some amount of legal knowledge, but they don't know the area. So being able to talk about legal concepts to people who aren't experts in them, I think is the skill of good advocacy, and it's also often what you're asked to do as an expert. Right is to take expertise that you have and then translate it to a lay audience or at least to a thoughtful judge, but who probably doesn't get a million trademark cases or a million design patent cases or copyright infringement cases? And so I think teaching is that's my, that's what I do every day, and so that that's a helpful exercise for me in thinking about it.
Speaker 2That's what I do every day, and so that's a helpful exercise for me. In thinking about it, do you find demonstratives to be useful?
Speaker 1Charts, graphs, slideshows, videos, models, etc. Visuals are super helpful. You know, I guess I increasingly, as a teacher, I try to avoid using text in the classroom as much. It's not always possible. But pictures are really helpful. Right To be able to, like, put things next to each other and then, to you know, put things in timelines. And so I think, yeah, visuals can be extremely helpful. They can be demonstratives, can be really useful in sort of making a little more concrete what can otherwise sound very abstract.
Speaker 2Speaking of technology, let's talk a little bit about court demeanor using telepresence. About court demeanor using telepresence. So if you're on a Zoom deposition, is it different or is it difficult to present yourself the same way? Or is it easier because you're kind of in home base, you know at your home with your kitty cat next to you, you know, as opposed to being in court? What do you think about Zoom and telepresence and trying to perform as an expert witness on camera?
Speaker 1Yeah, again, a mixed bag, right? So I think obviously helpful and efficient not having to travel and not having to, you know, spend the time and the money doing that. For me I never do that at home because I feel like I don't want the distraction, so I always do them from my office where I feel like it's just like a more, you know, professional environment.
Speaker 1But, you know, part of any communication in a courtroom is connection with people you're talking to Right. It's eye contact and it's like making. This is also a thing. I think teaching helps a lot with this. In the era of COVID.
Speaker 1In the era of COVID, when we were teaching on Zoom, one of the things I found most difficult as a teacher was I had a so much harder time reading from the students whether what I was saying was landing for them, because you know, a lot of them had their cameras off, or even if they didn't, it was like it was just they would turn, they would mute themselves, and so there was like speaking into the silence, you know, and and I think it's hard to know whether you're getting the right level of abstraction or you're saying things in ways when you don't get that kind of cues that you normally get Um, but on the other hand, um, you know, when you're doing you're being deposed or you're, you know, testifying just by zoom, like there's also like no other things going on right, like you're just you're just answering those questions, you're just focused on it. I think, for some people at least, that can make it less anxiety producing.
Speaker 2Let's talk a little bit about billing and and uh, engagement letters. Uh, as both an attorney and an expert witness, what's the push-pull between the two jobs in terms of getting, say, a retainer or a project rate or an hourly rate? How do you like to bill? And, as an attorney, do you typically prefer to have your own billing rubric that experts use, or are you okay with them using their own contracts?
Billing and Engagement Logistics
Speaker 1Yeah, I think experts are pretty widely varied in terms of that. I mean, it depends what the experts are doing Like. I have found in general that survey experts usually have an hourly rate, but they usually, if they're doing a kind of survey that they've done a lot before, they have a pretty clear sense of, like what the survey will cost and might often, you know, might give you like a flat rate for doing the survey but then an hourly rate for, like, deposition and trial work and that kind of stuff. I'll just. I guess the first thing I'll say is when I the very first time I started doing expert witness thing, one of my colleagues said to me under like every a hundred percent of the time, get a retainer. And I will tell you that that was 100% of the time get a retainer. And I will tell you that that is great advice, because law firms generally don't want to pay experts directly. They want the clients to do it and so there's like a pass through that happens and that means usually sometimes your bill is not at the top of the list of things to get paid.
Speaker 1And then I think the thing as expert especially, but even as a lawyer, that's the least pleasant aspect of any of it is having to chase payment. That's right. You don't want to do that, so so I do. I always get a retainer. Uh, what I like to do is just, uh, apply the retainer to the final invoice, whatever that is, and then, um, so that makes sense to me.
Speaker 1And then you know, I've done it both hourly and project based. It's I would never do like deposition or trial work, project based because I don't have control over how long it takes. You know, or Sure, but I've done reports on, you know, flat fee where, at least where it's a kind of report that I feel pretty confident that I know how long it will take me to do it. So you know, I just think it it depends. It depends on. It also depends on, in terms of your retainer letter, like is the firm? Are you being retained by the firm or by the client directly? You know what's the payment structure going to be like. So, yeah, I mean I would say that I think most lawyers and I definitely think as experts, like nobody wants to spend their time billing and collecting. That's not why you do any of this.
Speaker 2It's the least fun part of the job. How do you handle travel expenses? Is that something that you get a reimbursement for? Is that something that you prefer to get prepaid for? Do you are you able to travel? You know business class. Tell me about travel expenses.
Speaker 1Yeah, I guess, for the most part I probably do it by reimbursement. If I'm going to be in a place for a while, um, I usually will ask the firm or the company just to like pay directly for the hotel room or the flight. But you know, most of the time it's you're, you're flying for a few days and I don't mind doing that by reimbursement, um, but I do think it matters how long they expect you to be there, um, and I think you, you know, and people have different approaches. I, I wouldn't bill a client for business class. I fly enough that I usually wind up getting upgraded, but I don't think that's a an expense I would charge to a client. So, but you know, I'm sure there are people who are in very high demand and and are flying a lot. And, you know, anyone who flies a lot knows that the difference between being in row 32 and row 8 can be a lot when you're landing at midnight.
Keys to Successful Expert-Attorney Relationships
Speaker 2Absolutely. Let's talk about a couple of general topics. What makes for a positive expert attorney relationship? What are the key aspects, the key defining features that experts and attorneys should be looking out for for a productive engagement?
Speaker 1I mean, I think the most basic level, but probably the most important, is clarity and communication, right, so I think, having a clear sense of what the scope of the work is and about what you feel confident and comfortable saying and what you want, and, and then you know, lots of open communication about sort of what's happening in the case and and thoughts about it. I think that the experts as when I'm a lawyer, the experts I like working with the best I think are ones who are really thoughtful about what they're doing. Like I think there are experts in the world who are very cookie cutter right, they are. What they do for a living is they? And? And and those people sometimes will, they'll do a report for anyone who will pay them, right? Sure, I want an expert because I think these are the best experts and I think they're the ones that have the most credibility on the stand and they're the ones that do the best job. I want an expert who really wants to dig into what are the questions you're asking me to opine on and can I do that Right? Like, what are the right answers to it? Because I want an expert who feels unambiguously like they're giving an opinion they believe in on the stand and also who will say as I've had experts do and I think it's like no, I like. This is these are the two things I think are most important.
Speaker 1I do think this other thing, but I agree that there's more ambiguity about that Like I just think those are the most effective experts and I think they're the most enjoyable to work with.
Speaker 1And I think you know I've I've had, I've had a lot of those experiences with some really great experts and I always find them enjoyable, and usually you learn something along the way too. You learn what, and so I I hope I am trying to be that expert. You know when I'm an expert, also that I'm trying to be clear about. You know where my expertise lies and where it doesn't, and also where you know what my role is in the case and what I feel like I'm. You know what other information I need from the lawyers. So I think that's the most, that's the most important thing. And then I would also say, like there's a big range in terms of people's clarity of communication on the stand, and people who are really effective are able to, in a very sort of calm way, walk through aspects of their opinion pulled in one direction by hostile lawyers and are able to like maintain that and be clear, know when it's time to stop talking.
Speaker 2Absolutely On the flip side of that. Have you had any particularly negative experiences either with expert witnesses as an attorney, or the reverse of that as an expert witness with bad attorneys?
Speaker 1I don't think I've ever had an experience where the lawyers who've hired me that I've had a negative experience with. I've certainly had bad experiences with opposing counsel, for sure. You know, I think I've had experiences with opposing counsel who think that the right way to deal with an expert is to be badgering and abusive. So those aren't fun experiences. But I've had other experiences too where I've been deposed by lawyers who I thought were smart and thoughtful and ask good questions and they were doing a professional job for their client. But they were not misbehaving.
Speaker 1And I would say that, you know, as a lawyer, I have never, I think myself, worked with an expert who I thought poorly of, in part because I think I try really hard to do my homework about the experts before we hire them and I have, you know now, enough people in the world to know kind of who to ask like, hey, what do you know about this person and people who I trust. But I've certainly seen, as a lawyer, experts engaged in a case who I think are doing expert witness mill work, right, and they are not very thoughtful and that I find disappointing. And I feel like there are some great experts out there, people doing really great work. And then, but like everything, there are people who I think are maybe not as thorough as I wish they would be.
Speaker 2Absolutely. One of my favorite questions to ask people is do you have any pre-trial or pre-deposition routines or rituals? I've talked to a lot of people and some of them like to drink a lot of coffee but have no breakfast. Some people like to meditate, Some people like to listen to loud heavy metal music before deposition. Is there anything that you that gets you centered and ready to go for a potentially uh difficult deposition or cross-examination?
Speaker 1yeah, I mean, this is actually just as a life thing for me too. This is true for teaching but like I gotta start the day in the gym, like I need to do something physical, because otherwise I feel like I get up in the morning and I just sort of like spin things in my head a lot and it's, you know, um, and I get it. So I need to get out and do something, go to the gym, you know, at least go for a run and something like that. Um, and I find that, uh, true, kind of all the time when I, whenever I have like a lot of stuff coming up so, um, I don't know, like some experts who really like I've worked with an expert who really like does a whole yoga routine before they go in the courtroom. That's like a way of sort of centering. I've worked with others who, like you said, listen to kind of like hype music. I think people just, you know, you got to do what works for you.
Final Advice on Expert Testimony
Speaker 2Absolutely. Before we wrap up, do you have any last advice for expert witnesses or attorneys that are working with expert witnesses out there?
Speaker 1I guess I'm not advice, but I would just say I think that my most positive experiences on either side, either being an expert or working with experts and maybe this is just like because my full-time job is as an academic is like I really like experts who are really trying to understand truth for lack of a better way to say it Like they're trying to understand where their expertise can actually help the court make a decision. That is the right one. Right, rather than just approaching the whole thing as adversarial warfare. Right, where it's like I'm just trying to beat the other side, and I think that disposition is one that I hope experts will bring, because it's the reason why expert evidence is supposed to be in trials at all. Right, if it's just weaponized, then it's just laundering credentials to give what are essentially lawyer arguments. I hope that we can all do better on that.
Speaker 2Absolutely crucial insight. Professor McKenna, thank you so much for joining me here today. Yeah, thanks for having me, and thank you to our listeners for joining us for another episode of Engaging Experts. Cheers. Thank you for listening to our podcast Engaging.
Speaker 1Experts. Our show notes are available on our website roundtablegroupcom.