What I Have Learned as an Expert Witness in Over 800 Litigation Assignments

Joe Samnik, Consulting Arborist

I have had the good fortune of being named as an expert witness in over 800 litigation matters. I have been qualified in federal, civil, criminal, small claims and eminent domain courts of law. I have testified to tree values, wrongful deaths, personal injuries, eminent domain and product liability. My representation is nearly 50/50; plaintiff vs. defendant. I have traveled across the nation. I have witnessed some remarkable events. I haven’t seen it all yet; however, what I have seen has been quite an educational experience. Knowledge, is after all is said and done, what one learns after knowing it all; 20 years, or so.

In preparation for an upcoming litigation assignment I fell to reflecting upon that which I have learned during my tenure as an expert witness. These bits of empirical knowledge do not include that which most experts study and refine by reading the vast amount of books and articles on the subject easily found in the marketplace. Rather, my professional lessons and observations revolve about those experiences which define the niche of excellence which separates from mediocrity.

Have a read at your convenience please. Even if you are not an expert or have never been inside a courtroom, these lessons bleed over into the marketplace of everybody’s conduct as the passage from acceptable to excellent becomes defined.

1.     Always, Always Tell the Truth: While quite intuitive and seemingly obvious, telling the truth regardless of the consequences remains an elusive goal for many expert witnesses. There are a number of reasons to tell the truth, the whole truth and nothing but the truth. Contempt of court comes to mind. My career would be ruined; immediately if not sooner if I did not tell the truth under oath. The utter shame associated with being untruthful. But perhaps the best reason never to lie is that I would be gaming the system. Our system of justice has cost more than 1 million lives in wars to defend it, the truth. And while our justice system is not perfect it is way ahead of whatever is in second place. Always tell the truth; it’s easy to remember.

2.     Honor, Integrity and Character: Are the finest and best attributes which I can bring to the judge or the jury. If these attributes are a part and parcel of my ethos, nothing higher can be brought to bear than these three much sought after categorical imperatives.

3.     The Other Side Has a Story to Tell As Well: I may well not agree with the other side’s conclusions or opinions. I might think them ludicrous. Bizarre. Categorically ridiculous. Perhaps they have no merit as does their case. But they too have a right to be heard. They get to tell their story just like I have a right to tell my story. It is the judge or the jury that decides who is right and who is wrong; not me. I must respect their story and the person telling that story.

4.     Be Respectful of The Attorney Across From Me: Yes, she attempts to discredit me in front of the judge or the jury. Make me look like a fool. Make me out to be a liar. But, that’s her job. A king’s ransom has been paid for her education and for her continuing education. She herself has put in the unbelievable effort, time and numerous sacrifices to stand before me and execute her knowledge and her talents in front of the judge and jury. She passed the bar exam!  She has a client depending on her to completely discredit me and/or my opinions. That’s her job. It’s not personal. Perhaps if I had lunch with her over a different set of circumstances life would be grand. I might have met my new best friend. I just don’t take it, her personality and her tactics while in the space of attempting to impeach me, as anything personal. Time is money. She has a lot of money at stake. She may be taking a gamble, depending on the outcome of the case - the actual verdict - when she accepted the case and the client on a contingency basis. Much, much money is at stake. Often, more than you and I make in a lifetime - combined. And the only thing in her way is me. So, yes, she’s going in for it all.

5.     Don’t Worry About Getting Paid: The time and effort most experts put into making certain they get paid is astonishing; simply unbelievable. If they spent that much attention to the case they would have to perhaps a better outcome. Not me. I will get paid. I’m not in the least bit concerned. My retaining attorney might need a contract fine; send it on and I’ll sign it. I do not require a retainer. Why? Just more bookkeeping. My invoice will get paid. No worries. I’ve had a close call or two over the years but I’ve always been paid. Keep my nose to the assignment. The money is just a byproduct of my service anyway.

6.     At Least Once Take the Case You Can Never Win. So there I was sequestered in a federal case involving over $1 million of trees. I get this phone call from an attorney regarding the unthinkable act of destroying a venerable object - the oak trees at Toomer’s Corner. The pride of the Tigers. Poisoned by some lunatic. I listen to the story the attorney told to me. I had the assignment that night of researching the name, Harvey Updike. The next morning the attorney called me. Had I done my homework? You bet I did! The monster! I was already thinking of what approach to value I was going to use to appraise the subject and much beloved oak trees when I was told it was the defense attorney on the phone. I was to be on the defense team representing Mr. Updike. Oh, and no need to send any type of a fee schedule as Mr. Updike was indigent. The judge would tell me what I was to be paid. And it would not be those big slick city fees some experts charge. No sir. I could have declined the case but it was the words of the attorney that morning I have never forgotten. Everybody deserves the best representation possible; even poor Harvey Updike. Accepting that assignment was one of the better career moves I have ever made. The process cleansed my thinking. I got death threats. Unbelievable telephone calls from Auburn folks. I learned so very much. And more doors have opened and more situations have been diffused when it is learned that I was on the defense team of Mr. Harvey Updike. Roll Damn Tide…

7.     My Number One Courtroom Fear Is the Same Number One Courtroom Fear of the Cross Examining Attorney: And that number one shared fear is: The cross-examination! It’s a small world. Yes, the attorney across from me believes she has discovered all of my opinions. She did so at my sworn deposition; something like court but without a judge. I was under oath. She has me all boxed in and buttoned down based upon my answers to her during my deposition. Now, after my deposition, she and her tree expert have put their collective heads together. They’ve got a game plan for me at trial. They have all of their questions set and ready to go. All of their traps are set. They’ve got me for certain. That is because I do not know what questions they will be asking at court in front of a jury. Or in front of a judge. But her problem is that she does not know what my answers will be. A level playing field. Perfect.

8.     You Can’t Win Them All: Of course for an expert there is no winning or losing. That is relegated to the attorneys involved in the matter. An expert’s job is to teach the jury certain facts subject of particular expertise; that which they may not know, enabling them to make a more informed decision. There are a multiplicity of various legal reasons why certain facts are not given to the jury for their deliberations. There are at work in the courtroom numerous legal issues which the expert has no control over. An expert’s testimony in part or in whole may never go to the jury for deliberation. If an expert thinks that their opinions will carry the day every time, they’re in the wrong business; to the extent that testifying is a business at all.

9.     I Won’t Get Bullied:  During deposition or at trial there are four attorney personality types that will be across from me. They include: the Intellect; the Southern Diplomat; the Stupid One and the Raging Bull in the China Shop. The Intellect is a very calculating, slow and deliberate attorney who carefully crafts every question with a desired end result in mind.  These attorneys take the high road in an effort to impeach. The Stupid One approaches her prey by being so seemingly ignorant of every question asked in an effort to get the witness to ramble on. Very effective approach to discovering ancillary facts with which to impeach. The Southern Diplomat is one of the nicest people you’ll ever meet. Aw shucks, she’s just there to make sure that everything is okay and that you’re comfortable. She is not an enemy; she is not trying to impeach me, she’s just there because she wants to be, with no endgame in mind. Everything is roses. This is just a visit; not sworn testimony. No worries; life is just a bowl of peaches. Then comes the Raging Bull breaking everything she sees and trampling over every answer given to her inquiry. She is mean. She is angry - all of the time.  There is no misunderstanding her attempts to gore and destroy. Each of these personality types has been adopted after years of trial and error on the attorney’s part. They’re just doing their job. But I’ve got a job to do as well. And it is not an easy one. If it were just a matter of telling the truth then there would be no problems. However, these attorneys want the truth but they also want admissions that may not be the truth but are a logical transition from my testimony to what the jury will hear. In any event, I do not take it personally; however, I won’t get pushed around either. I have a fuse that runs with Gabriel’s Horn - to the bitter end. If I’m getting bullied or abused by the opposing attorney I will state so on the record. I have other legal options open to me if I feel I’m getting abused and I won’t hesitate to initiate them. I will conduct myself like a gentleman; please reciprocate. Let’s keep the 8 ball on the table please.

10.  Not All Attorneys Are Created Equally: As in any profession there are those in the ranks who choose not to conduct themselves in an honorable and ethical manner. This includes attorneys. Birds of a feather flock together. I must be very cautious of the assignments proposed for me to accept. I cannot be caught up in any type of legal settlement mills. I cannot become a part of any attorney who seeks to settle for a fast buck. A fast buck attorney does not give to her client what they may deserve. I must be careful to ensure that the attorney who might retain me is of the highest ethical standards and wants what’s best for her client; presumably, justice.

So, at this point in my practice and in my small but humble shop, these are the take-home lessons I have learned after being involved in over 800 litigation matters regarding trees and landscapes. Perhaps you might find some of my bullet points applicable to you and to your life’s work. I do wish each of you well and a bountiful harvest commiserate with that which you have sewn.