Expert Witness E-mail Blunders That Can Sink Your Case

Don’t Say That!

What is protected communications in one jurisdiction might be discoverable in another. Yet, many expert witnesses draft e-mails as if their words will never see the light of a courtroom projector. The author shares what she has experienced and makes suggestions.

Words live forever, especially when they are typed into e-mails during litigation. As an expert witness, your casual Monday morning thoughts could become Thursday’s courtroom exhibit, projected on a screen for all to see.

The discoverability rules governing expert communications vary significantly across jurisdictions.[1] What is protected in an arbitration in Michigan might be fair game in Illinois State Court. What is protected communications in one jurisdiction might be discoverable in another. Yet, many expert witnesses draft e-mails as if their words will never see the light of a courtroom projector.

The author has reviewed countless expert communications in her forensic accounting career and has noticed otherwise brilliant professionals undermine their credibility with a single, poorly worded message. This article explores commentary that should never appear in an expert’s e-mail when litigation looms.

The Legal Landscape of Expert Communication

Before diving into the “never do this” list, understand that discoverability rules are not uniform. Federal cases follow the Federal Rules of Civil Procedure, while state cases follow state-specific rules. Some jurisdictions protect draft reports and attorney-expert communications, while others consider nearly everything fair game.[2] Arbitration rules also vary considerably. Experts should discuss discoverability rules with counsel.

In Federal courts, Rule 26 may provide some protection for draft reports and communications between experts and attorneys.[3] However, these protections are not absolute. State courts vary widely in their approach to expert discovery, with some following federal standards and others taking a more expansive view of what is considered discoverable. Arbitrations add an extra level of discovery completely.

That said, Rule 26 does not shield everything. Three categories remain fully discoverable:

1. Communications about the expert’s compensation;
2. Facts or data provided by counsel that the expert considered in forming opinions; and
3. Assumptions supplied by counsel that the expert relied upon.

Expert witnesses should assume anything they write could end up displayed in court or read aloud during their deposition. This mindset will save experts countless headaches and potential embarrassment.

E-mail Content That Could Likely Haunt Your Expert Testimony

• “I’m not sure about these calculations, but they seem reasonable.”
  • Never express uncertainty about your methodology or conclusions in e-mail. If you have doubts, pick up the phone. Written expressions of uncertainty will be weaponized against you during cross-examination. If you need to discuss methodological questions, do so verbally or in a properly protected draft.
• “This approach gives the highest damages figure.”
  • E-mails suggesting you are trying to maximize (or minimize) damages rather than reach an objective conclusion are credibility killers. Never indicate you are advocating for a particular outcome rather than following the evidence. Your job is to be objective, not to help one side “win.”
• “Let me know what number you’re looking for, and I’ll see what I can do.”
  • This is the expert witness equivalent of writing “IMPEACH ME” across your forehead. It suggests you are willing to manipulate your analysis to reach a predetermined conclusion. Even joking about this is professional suicide.
• “Between us, I think the opposing expert/counsel is an idiot.”
  • Personal attacks on opposing experts/counsel make you look unprofessional and petty. Criticize methodology, not people. When these comments inevitably surface during cross-examination, they undermine your objectivity and professionalism.
• “I’ve never done this type of calculation before, but I’ll figure it out.”
  • Admitting inexperience in writing creates an easy target for opposing counsel. If you are venturing into new territory, discuss it verbally with the attorney. Your e-mails should reflect confidence in your expertise, not highlight your learning curve.
• “I think there is a mistake here, but don’t have the time or energy to figure it out at this moment.”
  • Identifying an error without fixing it increases an expert’s exposure.

The Dangers of Casual Communication

Many experts get into trouble by treating professional e-mails like text messages. They use slang, make jokes, or share half-formed thoughts. Sometimes they even send copies of political cartoons. This casual approach can be devastating in litigation.

Consider this scenario: You are reviewing financial statements and notice something odd. You quickly e-mail the attorney: “These numbers look fishy. Someone might be cooking the books here.”

Later, your final report relies on the reasonableness of the annual financial statements of the subject company. Now, opposing counsel has an e-mail suggesting you initially believed the accounting books and records were unreliable. You will spend valuable deposition time explaining away your casual observation rather than defending your actual conclusions.

A good reminder of e-mail risk is the Terraphase Engineering, Inc. v. Arcadis, U.S., Inc. case, where counsel accidentally sent privileged e-mails to a former company address that auto-forwarded to opposing in-house counsel. The mistake led to the disqualification of both in-house and outside counsel from the case.[4]

While this involved attorneys rather than an expert directly, the lesson is universal: a single misaddressed e-mail can unravel months of work, compromise credibility, and shift the balance of litigation. Experts should be especially cautious since even one misdirected message can hand opposing counsel a damaging exhibit.

Strategic Communication Practices

So, what should you do? Follow these guidelines to protect yourself and maintain your credibility:

1. Minimize written communications about substantive issues. When possible, discuss methodology questions, preliminary findings, and concerns by phone or video conference.[5]
2. Write every e-mail as if it will be read aloud in court. Use precise, objective language. Avoid humor, sarcasm, and exaggeration. They rarely translate well in a legal context.
3. Clearly separate facts from opinions. When sharing preliminary thoughts, explicitly label them as such and note that your analysis is ongoing.
4. Maintain a consistent tone across all communications. Dramatic shifts in how you discuss a case can be used to suggest bias or inconsistency.
5. Never discuss your compensation arrangements or fee structure in e-mails about your substantive work. These discussions should be kept separate to avoid implications that your opinions are influenced by financial considerations. Better yet, have your finance director deal with compensation arrangements.
6. Phrase your notes as questions. Was the bank general ledger reconciled to bank statements? Will the account be testifying as to the accuracy of the general ledger?

When You Must Put It in Writing

Sometimes written communication is unavoidable. When you must e-mail about substantive issues:

• Be concise and stick to facts. The longer and more detailed your e-mail, the more material opposing counsel has to work with.
• Use neutral language. Instead of “This approach is wrong,” try “This approach may not account for factors X and Y.”
• Avoid absolute statements. Words like “always,” “never,” and “impossible” can come back to haunt you if your position evolves. Generally, “generally” is preferrable.
• Proofread carefully. Typos and careless errors can make your work appear sloppy, undermining your credibility on more substantive matters.

Final Thoughts

E-mail or instant messaging/texts create a permanent record of your thoughts, often without the context that would make them properly understood. As an expert witness, your credibility is your most valuable asset. Do not let careless communications undermine years of professional expertise.

Remember that different jurisdictions have different rules, but the safest approach is universal: Assume everything you write will be read by the judge, jury, and opposing counsel. When in doubt, pick up the phone.

Your future self, sitting in the witness box while opposing counsel reads your e-mails aloud with dramatic emphasis, will thank you for your restraint.

[1] Bolmer, N. (July 3, 2024). “Setting Up Expert-Attorney Communication: Privilege,” published in Round Table Group. Source: https://www.roundtablegroup.com/the-experienced-expert/setting-up-expert-attorney-communication-privilege/#:~:text=Coupled%20with%20variations%20across%20jurisdictions%2C%20expert%20witnesses,venue%2C%20and%20any%20exceptions%20to%20that%20privilege.&text=Federal%20Rule%2026%20governs%20privilege%20and%20discovery,rules%20that%20nonetheless%20mimic%20the%20Federal%20standard.

[2] Legal Information Institute. (n.d.). “Civil Procedure,” published in Cornell Law School. Source: https://www.law.cornell.edu/wex/civil_procedure#:~:text=The%20federal%20courts%20follow%20the,the%20Federal%20Rules%20of%20Evidence%20.

[3] BVWire. (July 23, 2014). “How Rule 26 Protects Expert Draft Reports in Federal Court,” published in Business Valuation Resources. Source: https://www.bvresources.com/articles/bvwire/how-rule-26-protects-expert-draft-reports-in-federal-court-142-3.

[4] Miller, C. (2012, February 7). Legal consequences of e-mail blunders. Miller, Canfield, Paddock and Stone, P.L.C. Source: https://www.millercanfield.com/resources-alerts-735.html.

[5] Expert witnesses should note that AI notetakers and transcription services are becoming more common in video conferences, and the resulting written record of the call may be discoverable.

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Miranda Kishel, MBA, CVA, CBEC, MAFF, MSTCA, a Manager at Gould & Pakter Associates, LLC, supports the completion of business valuations, business calculations, forensic accounting, economic damages, and asset tracing engagements, focusing on in-depth financial analysis including modeling, forecasting, research, and report preparation. Her previous experience lies in small business consulting, commercial lending, accounting, real estate development, and economic development.

Ms. Kishel may be contacted at (218) 404-4877 or by e-mail to mkishel@litcpa.com.