Laura O’Sullivan on What Criminal Defense Attorneys Actually Want From Expert Witnesses

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Ted: Laura, thank you so much for being part of the podcast. As a quick reminder, I help expert witnesses with their online presence. A lot of the questions that they had were: how are attorneys finding me? What do they want to see in me when they find me? How can I keep a good working relationship with them?

So it revolves not just the online presence, but what happens after as well. Real quick, I’d like to give you an opportunity to introduce yourself, your law firm, and who you help.

Laura: Great. Yeah, so I’m Laura O’Sullivan and I work at Sandage Law. We’re in Kansas City, Missouri. We are a criminal defense firm and represent people who are charged with crimes both in federal and state court. We have a white collar defense group as well. I’ve been doing this for 34 years.

I always bristle when I say that number. I’m like, don’t do the math. But I’ve been doing criminal defense my entire career.

Ted: Awesome. So if there’s anyone that may need your services in Kansas City, they definitely gotta reach out to you.

Laura: Yes, please do.

Ted: Perfect. One of the questions I had was, when you’re evaluating working with an expert witness, does the fee structure matter to you? Do you have a preference between flat fees versus hourly rates, and does that preference change on the case type or complexity of the case?

Laura: The fee structure, I would say generally what I’ve encountered is pretrial. So excluding trial testimony and preparation, there may be an agreed upon kind of flat fee. And that varies, honestly. I’ve had it both ways, and that doesn’t bother me at all. I don’t look at that as a negative or a positive.

Almost every expert that I’ve worked with will charge an hourly rate for trial preparation and trial testimony, travel, that kind of thing. In terms of how they like to bill, as long as I can look at it and see that it is reasonable and the work that comes out of it is comparable, then I’m not really concerned about how they wanna bill.

Ted: Okay. As long as you’re happy with the work, that’s all that matters, right.

Laura: Right.

Ted: Which leads to one of my next questions. So when you’re working with these expert witnesses, what does creating value mean to you? Like how do you assess whether an expert is actually going to add value to your case and make sure that you are happy at the end?

Laura: So that’s a great question, because the value that an expert can add can be in different types of buckets, I guess I would say. So the first one I think is what people generally think of, which is, I’m gonna hire an expert, they’re gonna help me, and they’re gonna provide information that we would potentially present at a trial if we get that far.

But there are other experts that I’ve worked with quite often where we agree that there’s no intent for them to ever be a witness at trial. They may actually be helping to educate me and help me prepare in my cross-examination, or like investigative strategies. What am I missing from the information that they provided me? How can I understand the information that has been given to me and what questions should I be prepared to ask? And then there’s the expert that maybe I hired, and I said, hey, let me know what your evaluation is. And when they came back, they gave me an evaluation that’s not gonna help my case. So then it’s, thank you for your help, and that would end the relationship. And so I’ve had experts in definitely all three of those categories.

Ted: More of a consultative role as well. That was something I was wondering about. When you hire an expert, like you said, you can hire them as a testifying expert or more as a consultative expert. I know you mentioned some of the things that they do as a consultative expert. They assist you with the cross-examination and all those things, but how do you determine beforehand what you’re gonna hire them as?

Laura: That’s a great question. So I would say I think it often is determined by what area I need help with. I’ll give you an example. So if I have a DNA case, and I know I’m not gonna be doing any additional testing, but I need to be able to really understand the results that have been provided to me and I need to be educated on what those results are. I need to also be educated in what the pain points may be for the state or the government. So in that case, I might know I just need somebody who can help me walk through, make sure I’ve gotten all of the information, and then with their expertise, they can look through it and point out to me areas where there may have been a mistake, or just something that I should follow up in cross-examination. I would say sometimes the purpose changes as it’s evolving.

Laura: Yes. So let’s say I hire an expert to give me an evaluation of an accident scene. Let’s say it’s like a manslaughter case that involves a car accident, and let’s say that expert goes through, does some reconstruction, and in discussing it with that person, I’m not gonna benefit from having that person testify at trial. It won’t be beneficial to my client. However, that person can give me the information that I might need that could help me in cross-examining the state’s expert. So that’s a situation where I benefit from the expertise, but they may not be able to help me as a testifying witness.

Ted: And you mentioned something about the pain points for the state or the government. Can you tell me a little bit more about that? What do you mean by the pain points the state has?

Laura: Let’s take maybe a DNA result. Perhaps there is some evidence of some potential for contamination of the samples that were looked at at a crime lab. Pointing that out to the jury could be beneficial to my case. Whatever the evidence is, let’s say they were looking at the evidence from my case at the same time as the evidence that they found at a scene, and at the same time as they were evaluating the samples that they took from the suspects, including my client. So that could provide for a result that would seemingly implicate my client, but may not, and may have a different explanation.

The same could be said for, for example, a mental health evaluation. Maybe the pain point for the state or the government is that they only met with my client for one hour. So their evaluation appears to be not in depth, or maybe they didn’t conduct the necessary personality tests, things like that. So an expert is gonna know the steps that another expert should be taking in an evaluation of the evidence, and they can make sure that I’m educated, that I get the materials that I need so that I can point out if there’s been insufficient work or if they’ve missed steps.

Ted: Gotcha. So those pain points are like gray lines, like you said, that the expert helps come in and clarify a little bit.

Laura: Another example might be police protocol or procedure, or crime scene protocol or procedure. So if an expert looks at it and says, if I were on that crime scene, I would’ve taken photographs of the overall scene, then I would’ve taken an up close photograph, and then I would’ve taken one with a measuring device. And maybe those weren’t all taken. Just procedures, protocols, steps, those are the things that experts can help educate us on.

Ted: That’s why they get hired. To explain the hard details.

Laura: They get hired because they know more than I do. They have the expertise in the science or the on the scene, on the job kind of training. And I’m just over here going, what does this say? I need some help.

Ted: Going back to the billing question, these are some questions that some experts had. Do you prioritize billing versus expertise, and when do you say the expert’s rate is too high, like you might be providing value but it’s just too high?

Ted: Or where you feel like, okay, that’s a very fair rate and they provide a lot of value.

Laura: In private practice, I’m working with a client. So I am working with that client to say, I need this amount of money to be able to fund our expert. It’s either with a client or sometimes it’s with the government. In terms of picking an expert, I would say first and foremost is gonna be recommendations from other people, if I’ve worked with them before and I’m familiar with them, if I know that they are going to be straight with me, honest with me, give me the good, the bad, the ugly, everything, so that I can be properly prepared. I’m gonna prioritize that number one.

Ted: Awesome.

Laura: I’m gonna be willing to pay a higher rate for somebody that I have greater confidence in the job that they’re gonna do. So I want somebody who, on the stand, is gonna be able to say, I looked at everything, and they’re properly prepared. I’m gonna prioritize that number one.

Then if I’m looking at two experts that I’m equally impressed with, I’m gonna wanna know what each one is gonna be providing, and why is there this discrepancy? The discrepancy may be one has 10 years more of experience or has testified more. Then I’m gonna just have to decide who I think is a better fit for that particular case.

I don’t prioritize that hourly rate unless it’s so exorbitant that it prices out my client’s ability to pay.

Ted: How you were mentioning that sometimes some experts may have more experience than others. Let’s say for newer experts that may have only one case, maybe no cases or only a few cases, what are some things they can do? Maybe show you publications? Trainings on their CV, continual education hours. When you’re looking for an expert and you see they don’t have that much, if at all, testimony experience, what are some things that could prove to you that they are an expert in their field?

Laura: Just because somebody hasn’t testified as an expert before would not get them completely out of the running for me. So you mentioned articles and research. So if there is somebody that doesn’t have that expert testimony background yet, but has a particular area of research that they’ve written about, that they’ve worked with others on, I’m gonna wanna see that. So I’m gonna wanna see their CV. I want the articles, so I’m gonna read the articles. I’m gonna wanna know if maybe they have taught, whether in an educational environment or like a continuing education for other people in their profession.

So I want them to come and tell me why they are an expert in that area and show me why they are. I think that this is certainly an area where if you have an emerging area of science or an emerging area of research, then you’re gonna have experts that may not have testified before. And so you want to gather up all the information so that you can evaluate and determine are they going to qualify as an expert. So we’re gonna have to go through those questions that you would ask in front of the judge, or in front of a jury, and make sure that they’re going to be able to adequately answer those questions.

Then I’m gonna wanna see that research and have discussions with them about how are we gonna establish that you’re an expert. Help me.

Ted: It would be preferable if they have it already accessible so you can look at it and make your decision in your own time and then call.

Laura: Yes, it would be very helpful.

Ted: Okay, perfect. And this next question I have is a little bit more specific. So let me share my screen here. Can you see my screen?

Laura: Yes.

Ted: Okay, so this is an expert’s website. It’s got a video right there. Something specific I’ve been wondering about is this call to action. Right here I have this button, which takes you down to the contact form. Then I have the CV download so you can see their CV, and I have the phone number. Something I’ve been wondering about is, do you think it would make sense to just have this button be the phone number so you can call them, or does having this more explicit call to action, like in his case, get vehicle case review, is more compelling for you to reach out to them than just having the phone number?

Laura: That’s a good question and here’s my uneducated guess. I think that people are more likely to fill out the form online and send it in rather than pick up the phone.

Ted: Okay.

Laura: And I say that because I’m reflecting on me when I go to a website. For example, I’ll give you a quick example. I just hired a court reporter for a deposition. I did it online. I didn’t wanna make the phone call. I wanted to get the form out. And so I think these days it may be that people are more willing to fill out the form.

Ted: So if anything, maybe just because that get vehicle case review is maybe not too specific, you’re gonna be filling out a form. Is that what you would understand?

Laura: I would think that it would be, and then I’d click on the button and it’d take me down and I would start filling and I’d press a button and it would automatically fill out a bunch of stuff for me. And there we go.

Ted: Okay. Perfect. Awesome. Thank you.

Laura: Just one more thing, for those people that prefer to reach out by phone, the phone number’s right there too. So I actually agree with how that’s set up.

Ted: With all three of them. Okay, perfect. I just wanted to corroborate that.

Just to confirm something that you mentioned earlier, in this case, this expert has written a lot of reports and provided testimony, but let’s say for some experts that may just have like one, two, or three testimonies provided, not as many reports written. That’s when they could add their continual education hours. You said talks that they’ve given, or presentations, publications that they may have that could showcase their authority as an expert, so that you can reach out to them.

Laura: If I were designing this website for that expert, then I would not have testimony provided over there. I would have presentations given, or something that would highlight the number of talks that they’ve given. Something that would stand out, because you don’t wanna say expert testimony: one.

Ted: Yeah. Okay. Perfect. Awesome. Thank you so much, Laura. Those are all the questions I had for today. I really appreciate your time. I don’t know if you have any last feedback to give to experts who are listening on this that maybe they could do better.

Laura: I don’t know about doing better. I will say this. I love when an expert will give me areas that they think are important for me to cover in their questioning. I think that can be very helpful. I will say that in working with experts, I want experts to be flexible and fluid with me.

I’m the one who, for example, in front of a jury is paying attention to the jurors and their reactions. So I may have a question that’s not on the list, but a follow-up question. I think that’s important for experts to understand that we have our expertise in presenting the issue to the jury. And so there may be times when we want that expert to have the confidence to follow us into the questioning where we’re going.

And I do think it’s incredibly important for experts to be forthcoming. So if there is something that, for example, they were asked and it would be negative for our side, I need to know that so that I can adequately assess whether I want that expert to testify or not. Or maybe I do want the expert to testify and what they might say, I can front load, I can get it out and we can discuss it. There’s often things that may come out that might have good and bad sides, but I need to be able to evaluate that and make the call.

And then I guess the last thing is, and it goes along with that, it is helpful when experts have testified for, or made evaluations for, both sides, whether that be in a criminal sense or in civil cases. Because it shows that they’re not biased toward one side or the other. And whether it’s testifying or maybe working for a state or government agency, those are things that I think are helpful and things that we look at in selecting experts.

Ted: Okay, perfect. Thank you for that, Laura. I really appreciate it and I know a lot of experts are gonna appreciate it as well. Awesome.

Laura: We love experts. I do anyway.

Ted: We’re gonna get you some good ones.

Laura: All right. Good.

Ted: Awesome. Laura, that was it for the podcast.

Laura: Okay. Thanks so much for reaching out and it’s a pleasure to meet you. I watched several of your episodes and I really liked what you were doing. I think you’re casting a nice net across various disciplines. Like I saw the one with the immigration lawyer, God bless her, and then with one of the civil attorneys. Anyway, I like what you’re doing.

Ted: Thank you so much. That means a lot. It helps me keep going, helps me stay motivated. So I appreciate that a lot, Laura.

Laura: All right.

Ted: Awesome. I’ll let you go and thank you again, and send me an email with some times and we’ll get that done for you.

Laura: Great. Wonderful. Thank you.

Ted: Of course. Bye bye.

Laura: Bye.