• Litigation Strategy: Avoid the “Selfie” - Let the Expert be the Expert
  • February 18, 2015 | Author: Frank M. Holbrook
  • Law Firm: Butler Snow LLP - Memphis Office
  • It’s human nature to think we’re the smartest person in the room or at the table. It’s also human nature, and a trap for lawyers, to feel like you have to prove that point in front of the client. It’s a real pitfall, when the client is present, to confuse activity with effectiveness.

    I recently attended a site inspection with several lawyers, experts and clients. The experts were doing the things experts do, making measurements and notes and taking pictures. I noticed one of the lawyers was also busy taking pictures alongside his expert. In a situation like that, the questions that need to be asked are what is the benefit and what is the downside for a lawyer taking pictures when the expert is there?

    In my mind, there is probably little or no benefit to the lawyer taking pictures when his or her expert is present. If you expect to use the photos as evidence, how will they be authenticated? Even if your expert witness authenticates the picture as an accurate depiction of the scene, isn’t a potential follow up question on cross “Who took this picture?” Once the answer is given, “Lawyer X” , then a whole host of follow up questions might ensue. For example, “Is it correct, that based upon your inspection, the [matter depicted] did not strike you as important enough to take a photograph?” The ultimate question that will be left in the fact finders mind is “How good is this expert if he doesn’t know what pictures to take?”

    On the other hand, if the lawyer wants to keep the photos for his or her own personal use during trial preparation and claims they are work product, doesn’t this set up a potentially expensive and risky discovery battle if the other side seeks the photos?

    It’s human nature to want to appear actively involved in front of a client, but is the risk worth the reward? In my opinion, a lawyer is performing a better service for his client if he discretely asks the expert to take a photo of the things he thinks may be important or that he or she wants memorialized. Even if the expert is later questioned about the interaction at the inspection, it’s better to have the expert explain that he and the lawyer worked together to make sure all areas of interest were documented and the lawyer was also making sure that he fact finder would get the best possible visual depictions.

    The epidemic of “selfies” demonstrates that people are egocentric. A lawyer following his expert with a camera taking pictures may demonstrate the same thing. Avoid putting yourself at the center, of your experts work, the selfie may turn out ugly.