You have finally made a decision to hire a document examiner/handwriting expert. Hopefully, it is not a week before the trial, though I do understand, perhaps better than most that true emergencies can come up, like when my client and friend a former DA in Philadelphia, calls at 11PM on a Sunday night for a trial the next morning when a petition suddenly shows up that must be challenged.
When your office is at home, and attorneys get to know that, you learn to expect those things, but you have to be a pretty close friend to even think about getting away with calling me at 11pm on a Sunday night. Otherwise, I will just tell you to take a tranquilizer and call me in the morning and I won’t even send you a bill for the advice.
Well now as Steve Allen used to say: “All seriousness aside, let’s talk”
Generally speaking, experts do NOT like being called at the last minute. For me, last minute is anything less than two weeks prior to the time an opinion, albeit even a preliminary, is needed. Don’t even think about it if its a trial less than two weeks before the date of trial. This does NOT send a good message to your potential expert and will likely have him running in the other direction.
The reasons should be quite obvious. As I have tried to convey in my previous post, authenticating a signature or handwritten document can be quite complex depending on the case, Although I can appreciate the fact that an attorney, who on average, research shows, only uses a document examiner once every fifteen years, may not fully understand exactly what is needed to render an opinion that can be defended in court and, in fact, may have a simplified view of what is required. Attorneys need to give the expert sufficient time to collect said information that the scientific authority and case law require-otherwise, the whole exercise is a collosal waste of time and money and what’s the point? Nothing is solved and both the attorney and expert risk looking very bad to the judge for not being properly prepared and the judge may harbor an unconscious bias, thinking in his or her mind that the reason the attorney waited to the last minute is that he/she wanted to “slip something by”them. Maybe just maybe, the judge won’t have the time to look at things too closely if the attorney”s signature issue is really crap and his last minute ploy is merely a ploy to delay things, hoping it may somehow favor the client’s case by stonewalling. Maybe the plaintiff is right, the client’s signature really IS a forgery. Why would an attorney want to pay an expert to tell them something they already suspect might be true–at least not pay them a lot of money anyway-hence the recent proliferation of cheap experts willing to say anything for a buck just so that your opposing counsel can cause further delay and expense to your client and who knows maybe even make them throw in the towel and go away. Litigatin IS getting VERY expensive these days and the truth can sometimes suffer for that. Standing on principle it seems is getting to be a lost art.
This is why I take great pains to not allow myself to get involved in any of these dubious situations. Like I said, there sometimes ARE true emergencies, but like the sign I saw on a fellow expert’s desk says: “Poor planning on your part does not constitute an emergency on my part”. I will take an emergency for someone I know or have worked for before, but let’s face it, it is NOT a good sign for an expert when he or she gets those last minute frantic phone calls. It usually indicates to me that the attorney doesn’t want to pay unless they absolutely have to and even then, not pay too much or on the alternative are not well prepared. To an expert, either scenario is not good. It is hard to immagine someone being so poorly prepared that they didn’t know they had a trial in a week But hey, what do I now do with the cases I am working on for attorneys who did NOT wait until the last minute? Is it fair to them?
So the bottom line is that generally experts should avoid what my wife calls “Last Minute Louies” unless of course you like headaches and stress and chasing after lawyers for money-good luck on that.
So now back to “working with your document examin/handwriting expert” FINALLY.
Again, it is not my purpose to train anyone in document examination but instead what to do to get the most out of the attorney/expert relationship. Nor is it my job to quote the pertinent laws that relate to questioned documents in general and to this case in particular. It is a partnership, but not an equal partnership. At all times, it must be remembered, the attorney is the manager of his or her case and the expert must comply, as long as it does not violate any legal or ethical tenet whether it be the experts Code of Ethics or the attorney’s, notwithstanding “last minute Louie” The attorney should also have SOME rudimentary knowledge of the field such as one might find in my soon to be published book to give them SOME parameters of what the expert might need.
The expert must rely on counsel’s advice about the relavent law pertaining to the case and must comply. Likewise the attorney must comply with the scientific principles of the field that the expert must rely on and will be impeached for if not compliant.
In one sense, it is really quite simple for the expert. If the scientific authority says you do X then you do X. and you request that counsel do everything in his or her power to assist you comply with the scientific authorites and not try to manipulate things to save time or money. For example, the issue of exemplars often comes up Ie the known samples the expert must rely on to determine the writing habbits of the person who signature or writing is in dispute DURING THE TIME PERIOD of the disputed document. The authorities on this subject are quite clear as to what is reqired-how many, when, what type, etc. Ignorance or laziness to obtain proper samples on the part of counsel when the expert can not obtain them on their own(such as when a subpoena is required) is no excuse. The information is there in publics records, if necessary, which, thanks to the net are now much easier to obtain. Being told: “This is all I have” will only get you a preliminary opinion from me which will be useless in court. This is also true for any other information that may impact the analysis which your expert will be glad to provide in numbing detail. If the authority and thus the expert require it, it MUST be obtained. Experts who do not insist that their client/counsel provide the required material or information set themselves up for possible impeachment and even malpractice, an ever increasing tort in litigation now. And they only have themselves to blame. If counsel does not or can not comply with proper scientific authority, the answer is simple and clear-NO FINAL REPORT WILL BE ISSUED BY THE EXPERT -PERIOD!!!! I provide a detailed list of what is required and it must be signed and returned with the required information. In my cases, it is not possible to proceed unless all the required information is provided, but it seems there are some experts and attorneys who are willing to play “Russion Roulette” as one attorney/client told me, by not doing what is required for the sake of experdiency and hoping things work out OK.
As experts, we are not in the business of taking short cuts to please counsel and thus put ourselves at risk. And counsel should not be in the business of taking short cuts lest they lose the case and incurr the rath of a client or possibly worse. It used to be that it was hard to find a lawyer who would sue another lawyer-not anymore. The relationship between the expert and his or her client/attorney should be one of mutual respect and cooporation to reach a common goal–justice for the client. It will not work otherwise. The expert must allow counsel to do his job and not interfere and counsel must allow his expert to do his job and not impede. The right thing must ALWAYS be done to insure the best result. And let’s not forget, you don’t want to antagonize your expert by not paying their bill or resisting their advice or you will quickly lose them then have to start all over with another expert-if you can find one willing to take over.
Let’s face it, I, as an experienced and knowledgable expert do not want to be associated with experts who do not share my standards. Of course, we are not talking about students and trainees here. We are talking about experienced experts who KNOW or are supposed to know what their job is and how to do it. It often amazes me how highly little highly credentialed experts know about their field. I once had a case where an experienced government expert answered “I don’t know” twelve times in a row to basic skill questions about handwriting, prompting the judge to turn and ask: “Well, sir, just what do you know?” There went any credability he had, highly credentialed or not. And please as an expert, DO NOT advocate for your attorney or client or there goes your credibility. You can defend your opinion when it comes under attack, as it most certainly will on cross, as Albert Osborn, one of the accepted authorities in the field says you must. But there is a BIG difference between advocating for you attorney/client and defending what you believe to be the correct conclusion.
Lawyers are no different than experts.. A good and honest lawyer does not want to be associated with anyone whose standards are less than his or hers. That not only includes integrity, but work ethic as well. What would be the point? If you win a case dishonestly, what have you won except “bad karma” as they say? You have to look yourself in the mirror. You have to look in the eyes of your kids and tell them to be honest and hard working if they are to acheive in life. There is NO exception here. We all KNOW that, so why argue the point. Why shade the truth thinking no one will know. YOU will know. God will know. There will ALWAYS be a pay back for anyone who does not to follow what their heart tells them IS the right thing to do even if the pay back is feeling guilty and ashamed, which has been shown to have a bad effect on your health. As one young lawyer once told me: “I try not to piss off highly qualified and experienced experts. You never know when you might need them again”. By the same token, the attorney must always remember that it is really the client who has the ultimate say and who must be pleased with the effort in the end by both the attorney and the expert. Clients should not be left in the dark about anything and should be informed each step of the way.
Like President Truman said when the politicians were telling him what they thought he should do as he pounded his fist on the table: “DAMN IT, WHY DON’T WE JUST TELL THEM THE TRUTH!!!” That did not win him many friends in Washington, but he covered that to: “If you want a friend in Washington”, he said, “get a dog.
I have one, my Golden Retriever Gracie(who is on YouTube by the way)
A truer friend you would never want. She never complains as long as the biscuits are nearby and finds the greatest joy in the simplest things in life, like a walk in the park. There is a powerful lesson there somewhere.