Avoiding the "Hired Gun" Pitfall

Colleagues who are reluctant to take on a forensic case often refer to forensic work as a “battle ground” involving "hired guns." They don’t like the idea of being known as “hired guns,” and they don’t want to be “shot down" in the courtroom.

A good forensic expert can avoid the “hired gun” pitfall. To show how, I’ve generated a “luncheon conversation” with a fictitious friend and colleague who is reluctant to take on a forensic case.

We’d hardly been seated before my friend began telling me about an unpleasant experience that had been related to her by another friend, who is also a mental health practitioner. She said her friend took on a forensic case that resulted in a courtroom encounter he described as “a nightmare.”

“He told me it went fine until he was cross-examined, and then everything fell apart,” she said. “The opposing lawyer asked what he was being paid for his opinions, and when he said ‘about $35,000,’ the lawyer began asking questions that implied he was simply a hired gun who would say anything for money. The lawyer also insinuated that what he was being paid would have been kept hidden from the jury if he, the lawyer, hadn’t brought it out.”

“How did your friend respond to all of this?” I asked.

“That’s just it,” she said, “he couldn’t.”

“How so?” I said.

“The lawyer just kept asking ‘yes’ or ‘no’ questions like, ‘so, let me make sure I understand this, you were paid $35,000 for your opinions, correct?’ And another one I remember went something like, ‘when you were telling the jury your opinions, you didn’t say anything about being paid $35,000, did you?’”

“I see,” I said.

“When he tried to explain, the judge wouldn’t let him, and instead told him to answer only with a ‘yes’ or ‘no.’ He told me he felt shot down. It was very humiliating.”

“I can imagine,” I said.

“So you can see why I’m reluctant to get involved,” she said. “I can’t afford to put in a lot of time on a case without being paid for my work, but I don’t want to be made out to be someone who will say anything for money. I don’t want to be humiliated like that.”

“Of course you don’t want to be humiliated,” I said, “and there’s no reason why you should be.”

“What do you mean?” she said.

“To begin with, your friend should have asked the lawyer who retained him to address the fee issue during direct examination, instead of waiting for the opposing lawyer to bring it up during cross examination.” I said.

“How would this have helped?” she said.

“It would have shown the jury that your friend had nothing to hide, and that he wasn’t uncomfortable with the fact that he charged for his services.”

“Okay,” she said, “but what about the fact that he was paid for his opinions? What difference does it make which lawyer brings it out?”

“Ah,” I said, “you’ve just put your finger on the second mistake that was made.”

“What are you talking about?” she said.

“When the opposing lawyer asked how much he was paid for his opinions, your friend should have said he wasn’t paid a cent,” I replied.

“But he was paid,” she exclaimed, “he was paid $35,000!”

“Yes,” I said, “he was paid $35,000, but not for his opinions. He was paid for the work he did on the case. There’s a big difference.”

“I’m not sure I understand,” she said.

“Look,” I said, “your friend has principles, right?”

“He does,” she said.

And he ordinarily charges for his time, doesn’t he?”

That’s true,” she said.

“Okay,” I said, “wouldn’t you agree that he would have charged the same fee for the time he spent on the case, regardless of the opinions he arrived at?”

“Yes, I think so,” she said.

“That’s good,” I said. “Now, let me tell you how the fee issue should have been handled.”

“I’m all ears”, she said.

“Okay,” I said. “Let’s assume your friend has been called to the stand by the lawyer who retained him, and let’s also assume this lawyer starts by asking questions about his educational background, his professional experience, and so on.”

“To establish his qualifications as an expert, right?”

“Correct,” I said. “Now after establishing your friend’s qualifications, some lawyers might be tempted to move straight ahead, and ask your friend to state his opinions and explain how he arrived at them.”

“Let me guess,” she said. “You have a better idea.”

“I do,” I said. “Now is the time to put the fee issue right out on the table, and to show the jury exactly what he did to earn his fee.”

“And you would do this how?” she said.

“Different lawyers will have different ways of wording the questions, but I would suggest something along these lines,” I said.

  • Q. Doctor, you were retained by my law firm to evaluate the claimant in this case, isn’t that right? Your friend would answer by saying “yes.”

  • Q. Did my firm agree to pay your hourly fee for your work on this case? Again your friend would answer by saying “yes.”

  • Q. What is your hourly fee? Your friend would answer by stating his hourly rate.

  • Q. Doctor, do you know how your hourly fee compares with the hourly fee of other psychologists in our state who offer expert opinion? Assuming your friend has contacted other forensic psychologists in the state and knows their fee, and assuming his fee is about average, he should say so.

  • Q. Okay, doctor, would you be kind enough to tell the jury the issues my law firm asked you to form opinions about? At this point, your friend would list the major questions he addressed. He could use a power point presentation to provide the judge and jury a visual guide as he testifies. He might also explain to the jury why it was important to address each of the issues listed, unless the reasons are obvious.

  • Q. Doctor, was it necessary for you to read any documents in order to form opinions about the issues you have just listed? Assuming it’s true, your friend would say “yes.”

  • Q. Would you be kind enough to list these documents for the jury? Here, your friend would use a power point presentation to list all of the documents he read, for example, all the depositions, all the medical records, all the school records, all the employment records and so on.

  • Q. In addition to the documents you’ve just listed, were your opinions based on any other sources of information? Here your friend again would provide a power point presentation listing all of the other sources of information he relied on, such as interviews, psychological testing and the pertinent professional or scientific literature.

  • Q. Doctor, aside from everything you’ve mentioned so far, did you have to spend a significant amount of time doing anything else in connection with this case? Your friend would now tell the jury about other work he might have done, such as writing reports or preparing declarations, preparing to be deposed and preparing for trial.

  • Q. About how many hours did you spend doing all the work you’ve just described? Your friend would provide the answer, being sure to have his billing records close at hand to support whatever he says.

  • Q. At your hourly rate, doctor, do you know how much your bill has amounted to, so far? Again, referring to his billing records, your friend would provide the answer.

  • Q. Doctor, have you already been paid for all of your work up to the time this trial began? Assuming it’s true, as I hope it would be, your friend would say “yes.”

“At this point,” I said, “the attorney who retained him could move on to the main issues in the case. That is, he would begin asking your friend to tell the judge and jury what his opinions are, and how he arrived at them.”

“Wow,” she said. “Telling the jury about all the work that was done on a case could take some time. Do you think it’s worth it?”

“If you want the jury to see that your fee is justified,” I said, “the best way to do it is to show what you did to earn your fee.”

“Okay,” she said, “but even if you show your fee was justified, do you think this alone will convince the jury that you aren’t a hired gun who will say anything for money?”

“No,” I said, “this alone probably won’t be sufficient, but it will help.”

“What more would you have to do?” she asked.

“It’s essential,” I said, “to show the jury, not just tell them, but actually show them, that your opinions are solidly grounded in the undisputed facts and are supported by scientific evidence. Once you do this, if the opposing lawyer says you’re simply a hired gun who will say anything, the jury will know better.”

“I think I get it,” she said, “and if you don’t mind, I’ll pass all of this on to my friend.”

“I don’t mind at all,” I said. “I’m happy to share what I’ve learned.”

“But there’s one problem,” she said. “How does someone like my friend make sure the lawyer who retained him will use your approach?”

“He should have a conference with the lawyer shortly before trial, and bring it up then,” I said.

My friend was pensive for a few moments, and then said, “This has been encouraging. You’re saying that testifying as an expert witness doesn’t have to be a nightmare – if you know what to expect and how to prepare.”

“That’s exactly what I’m saying.”

“Great,” she said, “and it looks as though our timing was just right. Here comes our lunch.”

Shirley Feldman-Summers, Ph.D.
1/20/12


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