How to Deal with an Expert Witness

trial in the courtroom of the Russian Federation

This year marks my 20th year as an expert witness.  In 2001, I started working directly for a law firm near Philadelphia as an expert witness in the fields of dealership fraud, lemon law, breach of warranty, diminution in vehicle value, automotive repair and maintenance, dealership service, and sales policy and the appraisal of automobiles, recreational vehicles, medium and heavy-duty trucks (gasoline, diesel, hybrid, electric, compressed natural gas (CNG)) motorcycles and watercraft.  I then branched out, using my experience in the towing and trucking industries, and was allowed to give written opinions and testify in court concerning towing and recovery operations and policies, DOT/FMCSA-governed trucking/transportation, general transportation operations, and safety policies and procedures.  I didn’t write this to have you read my curriculum vitae.  I’m saying that people who work around lawsuits involving the towing and trucking worlds have similar court certifications.

In my last 20 years, I’ve been directly involved in 42 towing liability cases, 18 trucking liability cases, 22 trucking industry repair downtime cases.  I lost count several years back at 12,000 lemon law and breach of warranty cases.  Yes – twelve thousand.  I’ve also written five books on automotive ownership, legal matters, and the trucking/towing industries, mostly aimed at business survival.

I’ve testified in trials, mediations, and arbitration hearings more than 800 times. I’ve also been deposed, counting all types of cases, 166 times. One of those depositions lasted two and a half days.

Please bear in mind that the towing and trucking liability cases take a lot more casework, inspections, accident reconstruction, and attending depositions of the involved parties.  Lemon law cases revolve around a diminution in value – the value of a vehicle lost because of negative service history or meeting the standards of a state’s lemon law.

I’m telling you all of this to get to my point.  Please let me explain how to work with an expert witness who may be working on either side of a case with which you are involved.

There are standards that an expert witness must maintain, no matter what field the expert is involved with.  An expert should always remain neutral.  The other side of the lawsuit that an expert is working on always wants to tie together the fact that the expert is getting paid by one side, so they may speak or write in favor of that side.  It does happen.  I’ve seen “lies by omission,” told by someone who conveniently leaves out some factor that matters.  I’ve seen experts for car manufacturers and plaintiff’s counsel (usually working for a personal injury attorney) that will argue against any point brought up, regardless of whether it’s the correct thing to do.

As an expert, plainly put, it’s my job to try and destroy the credibility of the case on the other side, and usually involves killing the credibility of the other expert.  I am now accustomed to being attacked, although at first, it really bothered me.  After a couple of hundred cases, I realized it was just part of the game.

The most important interaction you have with an expert witness isn’t in court. At that time, it’s too late to change your strategy or testimony.  The time that matters is when the expert comes to your shop to inspect a piece of equipment or a vehicle involved in an accident.  They’ll base their expert report on what happens there, and the report is very critical.  It actually limits what an expert can talk about in court.  If it isn’t in the report, the information cannot be included in testimony.

Several times, I’ve dealt with a tow operator who opened the storage yard for our appointment and then commenced to talk freely about the case.  This is horrible, preventable, and very bad for your company’s involvement.

I’ve had a tow driver tell me how his buddy Roger screwed up on the call and caused extra damage to the car, and then this second-hand information guy started to tell me and the accompanying attorney all about the crash victim’s personal business, the type of day they were having, and whether he thought the crash victim or the other party was at fault.

Please fully understand that these visiting attorneys and expert witnesses are not your friends, your buddies, or your coworkers.  You and your crew may talk openly about a wreck scene or particular recovery, but that’s a discussion that needs to stay within the confines of your shop.

Anything and I mean anything, that is seen, heard, or otherwise discovered during an inspection visit can be used against you.  That’s why the term for this period of time that attorneys use to gather information is called “discovery.”  Anything they discover while at your business can be used – for either side.

If you have one of those guys or girls who loves to talk too much, it’d be a good thing if they weren’t present during the inspection visit.  And if that person has to testify in a deposition or trial, make sure they’re coached to stick to only the facts that THEY know, and answer questions with the shortest possible answer.  

Attorneys are masters at discovering information.  That’s their job, and what they’ve trained to do since their first days in law school.  If you answer a question with too many words, or leave an answer “open,” it can easily lead to a long series of follow-up questions you or your people may not be prepared to answer.

As a company owner or manager, you’d do well to handle the visit yourself, only give greetings or pleasantries, and don’t begin discussions or answer questions related to the accident involved.  If they have a question about the tow bill, give them the invoice, and don’t say a word.  If they have a question, they’ll ask. Volunteering extra or needless information can get you into legal trouble.

I’m not trying to scare you into hiding in your office when these people arrive, or to remain without speech if you’re called for a deposition.  Do your homework, consult your attorney or have them present.  Answer with “yes” or “no” as much as possible.  The old phrase “Loose lips sink ships” could not be more accurate than in the legal industry.

Many people don’t realize the impact of a couple of words written or spoken.  One technician found out the hard way.  This isn’t related to towing, but I’m sure you can understand how a statement by one of your people might have a similar impact.

In 2002, I was the expert witness for a federal level class action lawsuit against Hyundai for emissions and drivability problems.  There were over 400 plaintiffs.

As the lawyers were getting ready to go forward in federal court in New Jersey, I had reviewed a bunch of work orders and support documents on over 50 vehicles that I’d picked at random.  On one particular work order, I brought something to the attention of my managing partner.

He quickly sent out a subpoena for a mid-level technician and his service manager from a Hyundai dealer in Scranton, Pennsylvania.  I could tell that when we got set up on the first day of trial and they arrived, those two guys had no idea why they were at a federal level trial in New Jersey.

The court/plaintiff’s attorneys/defense attorneys went to the normal process of opening up the witnesses.  The technician was the first one up.  He gave all his personal information including where he worked.  Lawyers from my firm started reviewing repair orders that he had done on a particular car.

For information, there are three Cs used in work orders: complaint, cause, and correction.

On this one particular visit for a check engine light and rough running engine on a Hyundai Sonata, the service advisor wrote the customer’s complaint as “check engine light and engine runs rough.”  

As an obvious joke, the technician wrote the cause as “sh***y Hyundai quality”…  And the correction was to be “set it on fire and roll it into a river.”

To understand the depth of this “joke” …. a Hyundai Certified Technician working at a Hyundai franchise dealership just expressed a written opinion – and his opinion carried a lot of weight with the judge and jury. It was very ugly from then on out.

That tech would have never guessed that something he wrote on the back of a hardcopy repair order would have him testifying in federal court a year later.

Hyundai lost, and paid $3.4 million to the group of plaintiffs.