How To Become An Expert Witness
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Before I got the call about working as an expert witness in an employment-law matter, I’d never heard of an expert witness from the business world. The little I knew about the expert witness world came from cop shows and courtroom movies. I assumed that all expert witnesses were scientists or doctors.
My friend asked me “Do you want to be the HR expert witness for my friend’s case?” My friend’s friend is a lawyer, and he was looking for an expert witness in the HR arena to help him on a sexual harassment case. I quizzed him on the specifics, over the phone.
What will your expert witness do? I asked him.
My expert witness will become familiar with the facts in the case and explain in a deposition and, if necessary, in the trial that responsible employers take more care to prevent sexual harassment than this employer did, said the lawyer, The employer was the defendant in the case.
I read several hundred pages of documents, and they fused into a movie in my mind. A woman was experiencing sexual harassment at the hands of a much higher-level executive. She didn’t know what to say or who to report the harassment to. She told a lot of people about it, but nothing changed. She told the executive to back off, to no avail. Finally she made a formal complaint to the CEO’s admin, the only person she could think of to talk with about her problem. The admin told her boss, the CEO, about the complaint, and the next day the long-term, highly-regarded employee was fired.
“That’s so obvious,” I said. “Why do you need an expert HR witness to show that this employee was terminated as retaliation for making her sexual harassment complaint?”
“This case will be tried in a very rural area,” said the lawyer. “I can’t rest on the certainty that the judge will know how responsible employers deal with situations like this. There’s no HR person in this company, no sexual harassment training, no defined complaint mechanism, nothing. I need you to be in the courtroom explaining that it is easy and inexpensive to do a better job preventing harassment than this, and that most companies do a better job than these folks did.”
I kept mulling over the case. I testified at a deposition with opposing counsel, the employer’s insurance company’s lawyer. He asked me “How many articles have you had published on employment topics?” “I can’t say for sure,” I said. “Over five thousand.” He asked where the articles are published, and I told him — Kiplinger’s, Business Week, TIME.com, the Harvard Business Review and so on. He asked me where I’ve consulted and I started listing a roster of corporations. The deposition took four hours. The lawyer who hired me was beaming at the end of it. The insurance company made a settlement offer that night, and the case was settled. I never testified in court that time.
I would have been happy to do it, of course, but I’m glad the woman got her check and her vindication. I am happy to work on either side of an employment matter. I have seen employers do heinous things, but I have also seen unscrupulous employees try to take a company because they think the employer has deep pockets.
When I was at U.S. Robotics, we got an employment discrimination charge citing discrimination on the basis of national origin. I was shocked to see that. We celebrated our diversity. We had purchased enormous flags that hung from the rafters in our manufacturing area — the national flags of the countries our employees hailed from. The last time I counted, we had 55 different flags hanging.
We didn’t have an Ecuadoran flag, because as far as we knew none of our employees came from Ecuador. Nobody had asked us to get an Ecuadoran flag, but a woman made a claim that we’d discriminated against her because of her Ecuadoran heritage. That was a head-scratcher. I couldn’t tell whether the poor woman was confused or whether she or someone in the shadows pulling her strings was trying to take U.S. Robotics to the cleaners just because they thought they could.
Once we told the judge that we’d never had the slightest hint the woman came from Ecuador nor had anything unfortunate happened to her at work — she hadn’t been demoted, given a lower pay raise than anyone else, been terminated or suffered any misfortune at all — the judge shut the thing down. The case was over.
You could become an expert witness too if you’re a subject matter expert with a body of knowledge in a particular area. You can work for yourself or sign up with an expert witness agency. You’ll be paid for the time you spend reading and integrating the materials you receive from the attorney who hires you. You’ll be paid for your testimony at a deposition or in court. Expert witness work is interesting and righteous, as long as you take care to work on the side of the case that resonates with your own sense of right and wrong.
I love to explain to a nasty defendant’s-side employment lawyer that if I’d been the HR chief in a broken company, I’d have written a check. It happened to me as an HR VP, and I’m sorry to say it happened more than once. In a big company where a lot of things are going on, bad stuff can happen and it can take months for HR to hear about it. If I’d been learning about horrifying and indefensible actions unfold in the company where I was the Minister of Culture, I wouldn’t defend the wrongdoing. I’d write a check and chalk it up to learning for me and others. When your teammates screw up to that degree, you have no other choice.
If you want to work as an expert witness, talk with a lawyer friend about the types of cases where your expertise could come in handy. Keep in mind that expert witnesses may have to take themselves out of circulation for other projects in order to reserve trial and arbitration dates that may be (frustratingly) changed at the last minute. If you want to dive into expert witness work, keep in mind that the characters in and facts about your case — that is, your movie — will roll around in your head for weeks after the fact. If all that still sounds appealing, then why not dive in?
You’ll need to keep a tally of your expert witness matters, because you’ll have to submit that information to both sides in the case and to the court. You’ll also want to collect your published articles and create a listing of publications, publishing dates and story titles. You’ll need to settle on an hourly rate for your expert witness services, which can vary from $1,500 or even less to thousands of dollars per hour, based on the expert witness’s experience and other factors (in my case and perhaps in yours, opportunity cost is an issue).
Would it grow your flame to become an expert witness and help righteous people and their attorneys win cases? If you like to synthesize information and draw conclusions from it, are comfortable writing and speaking in tense and adversarial situations (depositions and courtroom appearances can be off the charts on the animosity scale!) and want to use your knowledge in a way that’s different from teaching or consulting, consider becoming an expert witness, too.
For me, hearing the words “Our side won” feels like winning the lottery. As an expert witness, my fee is the same whether ‘our side’ wins the case or loses, but the money is just a small part of the action. When you say what you believe and it resonates in such a way that the side of right triumphs, your expert witness fee will be the last thing on your mind. Why did I go into HR, after all, if not to bring my passion and fire to people who need it.