Several years ago, I received a call from an attorney working on a case involving a massage therapist who worked in a larger business offering massage. The attorney was seeking an expert witness who had experience as a massage therapist as well as knowledge about what goes into owning or managing businesses which employ massage therapists, all of which I have. Though I had no prior experience working on legal issues, I was hired and proceeded with both caution and curiosity.
In the years that have passed since I took that first case, several colleagues have expressed their interest in working as expert witnesses. While it can be rewarding on many levels, including financially, it is vital anyone considering this kind of work be prepared for what they would be taking on.
I invite you to peruse the following list containing some of the qualities and skills I believe an expert witness needs to succeed, along with some of the realities that come with the job.
You must have a relevant area of expertise in the field of massage therapy and have spent significant time mastering your skills and specialty. Just being in practice as a massage therapist for a long duration is not enough to qualify you to provide expert opinions on the issues that come up in a legal case involving massage therapy. Additionally, you should have strong credentials, résumé, reputation and references.
Most experts have specific areas of specialty. Some to consider focusing on could include:
• Sanitation and safety in the workplace
• Specific techniques or modalities that require advanced training or certification
• Business management, operations, training and hiring practices
• Burns and other injuries
• Professionalism and ethics
• Product liability
Working with attorneys and the courts requires focus, concentration, discipline and organization. You are almost always on a deadline, sometimes several, and there is often no one to keep you on schedule but yourself. You not only have to be good at budgeting your time, but also keeping track of it, as you will need to accurately bill for the hours you spend working on the case. In my experience, attorneys are pretty prompt paying what is owed, but it is still up to you to invoice them correctly and in a timely fashion.
As you work, you will need to set up some kind of system of filing for all the documents you receive as well as tracking what has been read. You’ll also have to find a way to keep notes that help you remember the relevant facts of the case that will help you build your opinion(s.) This is really important as months or longer can pass between the time you first take on a case and when you are asked to provide a testimony about it.
More than anything, this work involves reading—and a lot of it. Depending on the type of case you work on, you could be charged with eyeballing everything from medical records and personnel files to training manuals, police reports, client files, insurance policies, corporate documents and state licensing records.
Oh, and then there are the depositions, or transcripts of conversations between attorneys and various parties associated with the cases. In some cases, you may also be asked to listen to audio tapes or watch videos of meetings, classes, interviews or surveillance of a relevant location.
While much of what you review can be boring and tedious rather than exciting or salacious, it’s vitally important you comprehend what you read and see. By sifting through piles of tedious information with a critical eye, you hope to find critical details to help you form your professional expert opinions.
Although what most of us know about expert witnesses is from watching courtroom docu-dramas on television in which experts take the stand to testify, most of the communication you will do is before a case ever goes to trial. Thus, you need to be good with words, both verbal and written, communicating in a clear, concise and professional way. You should also be computer fluent, able to seamlessly connect by email; and be able to upload, download, save, scan, print or fax documents easily.
Once hired, you’ll be asked to meet with the attorney(s) from time to time to discuss the case and any questions or issues that may come up. You’ll be given access to the case documents to review (which could be via email or on a USB drive, data CD or delivered hard copies) before providing your expert opinion(s) and other supporting information in a written Affidavit of Merit or Expert Witness Report, or whatever format the attorney has requested.
On more than one occasion, I’ve had an attorney call me with an assignment or issue that had a very quick turnaround deadline. If I’d already committed to work on the case and taken a retainer payment, this may have caused me to have to change my schedule, move client appointments and other work commitments, sometimes when I had personal plans including time off. Thankfully, I have the flexibility and willingness to do that.
While it is perfectly fine to turn down work you don’t have time to take, if you’ve already committed to a case, saying “no” in those moments is a quick way to gain a bad reputation.
Meeting unexpected time crunches and deadlines are just a part of the deal, even when you’d rather be taking a nap or watching a movie. For some people, this is a deal killer—and it may be for me at some point. For now, and for anyone who is an expert witness—a good one, anyway—this is part of the reality.
Another way of saying this is knowing why you are doing what you are doing, but it’s also important to approach each case with an open, unbiased mind. Your job is to learn the facts about each case (no assumptions allowed) and to use those facts to render professional opinions about the case.
The hiring attorney will have their own intentions based on who they represent. While you must keep that in mind, you must also be willing to call them out when their assertions are off-base.
In almost every case I have worked on, I’ve helped educate the attorneys on the massage industry and the professionals in it by: sharing proper industry terminology (massage therapist vs. masseuse/masseur; massage clinic or practice vs. massage parlor, as examples); explaining variations of draping techniques and laws; outlining the steps of service in a massage; listing typical consultation questions; and so much more.
Instead of getting upset when they mis-speak or misunderstand, I try to help them see things from the other side of the table.
Similar to massage therapists, expert witnesses must keep case information and details confidential. This can be difficult as people around you are always looking for a hot piece of gossip. However, you are not at liberty to discuss anything that could reveal a case publicly.
Additionally, you will have to watch what you say and do in print, online, and in any kind of recorded media from this point forward—and backward. Everything you have ever written, published or been quoted in saying is fair game for being scrutinized by not just opposing counsel but also the people who are considering hiring you.
If you have a big mouth or are particularly opinionated in a way that could relate to a case—and have shared your views anywhere publicly—believe that it can be found and will be brought up to make you look unprofessional.
In this role, you must not be easily offended, rattled or triggered, and able to stay calm, cool and collected under pressure. You must be able to face the criticism, scrutiny, questioning and attacks made by opposing counsel, especially during a deposition.
The “other side” will do its best to discredit you in any way they can, from twisting your words to questioning your motives to trying to turn your errors, mistakes and mis-spoken words into weapons. It’s nothing personal—but it can certainly feel otherwise in the heat of the moment and/or after literally hours of being questioned about every facet of your professional experience, reputation and experience. Be prepared to defend your position, practice and past.
Additionally, you need to practice what you preach. If your day-to-day practices and procedures and that of any businesses you are connected to are not at least as strong as what you are recommending, be prepared to be attacked by and have your opinions invalidated by opposing counsel.
In short, there is a lot more that goes into being an expert witness than most would imagine. In my case, I have a natural inclination toward this type of work. It is a unique way for me to contribute to the massage industry in ways I never expected. Perhaps it will be for you, too.
The author of this article is an experienced massage therapist and educator. They requested to publish the article as Anonymous due to the tactics employed by opposing counsel as described herein.
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