Inside the Attorney’s Mind: Ally Keegan – Why Some Experts Never Write a Report

Also listen on:

​[00:00:00]

Ted: Thank you so much for being part of the podcast. just a quick recap, the podcast is to help the expert witness community. I help them with their web design and SEO, and a lot of the questions the experts had were: What are attorneys thinking? How do they find me? and then that’s how the podcast started, and now it’s more evolved into the actual nitty-gritty of the or work relationship between the experts and the attorneys. So at the beginning, please take it away. Tell us a little bit more about you. You’re Ally Keegan with Keegan Law, criminal defense in California. So please take it away.

Ally: Yeah. Thank you, Ted, so much for having me. I think this is such an important podcast to help experts do the best possible job they can so that we can do the best possible job we can. As you said, my name’s Ally Keegan. I am the owner of Keegan Law here in San Diego, and [00:01:00] all we do is criminal defense, state and federal criminal defense here in San Diego.

I don’t like to drive up a million hours for court, so I like to stick with what I know and where I know it. And we can handle really anything in the criminal defense realm, from DUIs all the way up through murder and sex cases, and we can do that from everywhere at the pre-file stage, even before you get arrested if you’ve got a sense that might be, in the pipeline, and all the way through trial to verdict and sentencing

Ted: Okay. And you’re located in San Diego, but are you able to serve people from the surrounding areas? Do they gotta come to you or can you do it virtually?

Ally: So in theory, there are some courts that will allow it virtually. I don’t actually appear virtually in any court outside of the Southern District of California, which is based in San Diego here, as well as San Diego [00:02:00] County state courts. Could I practice in a different court? Yes. I’m barred to practice anywhere in the state of California, but much like a lot of your experts, it’s good to sort of have one lane and stay in it.

So I don’t venture out into other counties outside of San Diego. I think there’s something to be said about knowing the procedural rules, the judges, the prosecutors in the area where you practice. So we aim here at Keegan Law not to be a jack of all trades and to really keep it to one thing and make sure we’re doing the best possible job at it.

Ted: That’s very interesting. So in different counties, there are different laws as well, but also the judges, the people in it could just, require a different approach

Ally: That’s exactly right. And there are different personalities, right? One of the questions we get most often from clients is, “Okay, we’re running this motion. What are our odds? [00:03:00] Do we think the judge is gonna grant it? Do we not?” And knowing the players involved in the system is the best way to have answers to questions like that, so that based on our experience, not just with the law and with the cases, but with the actual people that we’re working with within the system, it helps us make a much more dedicated and tactical approach to clients’ cases.

Ted: That’s really cool that you’re able to give more accurate answers to those very specific questions. tell us a little bit about what made you get into law

Ally: Law was always something that was a joke almost in my family growing up that I was– I should always be a lawyer, right? Because I was I say a brat as a kid. My mom says I was an angel, but she’s a liar. So it was one of those things where it was always sort of in the back of my mind. It wasn’t until college that I started working in a district attorney’s office over summers in Brooklyn, and then in law [00:04:00] school getting into it in the criminal defense side, where I really realized I didn’t have to call my bluff.

it was so much fun, especially in criminal. I’ve always rooted for the underdog, even in sports. If I don’t have skin in the game, I’m gonna root for the, the underdog. And criminal law is like looking in everyone’s medicine cabinets all the time. I’m never bored. There’s always something new and something challenging.

So when I really started to get into the work, I knew that I didn’t wanna do anything else. I got lucky

Ted: Awesome. they say if you love what you do, you never work a day in your life. But that was an interesting comment you made about the criminal side being– Did you imply it’s rooting for the underdog? Like everyone assumes the defendant is guilty until proven innocent

Ally: Yeah, for sure. And when we do jury selection, it’s one of the first questions we usually ask our potential panels. We say, [00:05:00] “Hey, listen, that guy in that seat next to me, who here is wondering what he did?” And you see hands fly up half the time for, “I wanna know what he did.” And you use that to kind of explain occasionally, “Listen, he’s done nothing.

You haven’t heard any evidence, right? That’s the presumption of innocence.” And you totally understand why people subconsciously, don’t abide by that, but you get it as a person who has feelings ’cause you’re curious. So it’s one of those things where, you’ve got the weight of the state or the federal government and all of their resources against, your client.

So of course, you’re the only person standing between your client and all of those other resources, and it’s, it’s a privilege to do the work.

Ted: Okay. that was very interesting. I’ve never heard that the process that goes on for the jury selection, [00:06:00] which I’m assuming it’s a process. Is that– By the time that you do that, you– since it’s going to trial, you already have an expert on hand that you’re gonna use for that case.

Ally: That’s exactly right. Yeah. So in criminal, at least in California you need to provide all of your expert statements that you’re going to use and reports usually thirty days prior to trial, and that goes both ways. The defense and the prosecution have to provide who their expert is, what is their contact information, a copy of their CV, and any reports that they’ve written or that they’re relying on.

And then part of voir dire jury selection is where you can start to probe the jury about how are you going to respond to these experts? Are you going to, whether you mean to or not, provide more weight to government experts than the defense experts? And you can start to really hone in on some of those issues [00:07:00] really early on because it can help jurors keep that in mind later on.

“That’s right, I’m supposed to be impartial. I need to hear all the witnesses, and once I do hear the experts, then I can decide who I think is more credible and who, if anyone, I wanna give more weight to.”

Ted: Oh, wow. how does the jury know if the expert is a government-provided expert or a private expert? Is that, announced to them?

Ally: It’s not formally announced, but it is implied because the government is going to put on all of their witnesses first, and then if the defense has any witnesses and any experts, they’ll come after the fact. So based on the flow of the case, the jurors will know the difference because they will see the prosecution experts all go first, including their civilian witnesses, and then it’s the defense turns after.

So they will recognize that, and a lot of times it comes out in the testimony anyways. If I have a paid [00:08:00] expert, usually, and let’s be real, they’re always paid because no one’s doing this work for free, I will bring it out as part of direct examination. And, “Doctor, how much were you paid today?”

“Yes, I was.” “How much were you paid to, for your testimony and reports today?” “I was paid seventy-five hundred bucks for all of it.” “And did that influence your opinion at all?” “No, it didn’t. I would’ve given you a truthful opinion whether, I was hired by either side.” So both based on the timing, the jury can tell, and then based on the content of the testimony, it usually becomes clear.

Ted: Okay. And that’s very interesting about the jury, ’cause the jury, it’s my understanding it’s normal people, right? You just get the letter someday that you got jury duty. So most of them don’t know anything about law, and it sounds like in the process you have to educate them on, a little bit of, not necessarily how to think, but right, how to think about in this [00:09:00] scenario, like being partial, not be biased in a way. And for some of those questions where you, where you said that you prep them to not be biased against the experts, what are some of those questions that you ask them?

Ally: So we’ll ask generally more broad questions first, which is just you can start with a police officer, right? Sometimes police officers or law enforcement officers, sometimes they’ll give very normal investigative type testimony. Sometimes officers will actually give expert testimony as well in the sense that they have speciAllyzed, specialized credentials in phone downloads or electronic data, things like that.

And you can broach that question with jurors during voir dire with, “Hey, who here thinks that testimony is inherently more credible or more believable if it comes from a law enforcement [00:10:00] officer?” And that’s a way to get their feet wet with it. Historically, we saw a lot of, “Yeah, I trust police,” right?

So if someone with a badge and a gun is telling me this is what happened, whether it’s the right answer or not, some people say, “Yeah, I tend to believe the blue.” And more recently in– or since Black Lives Matter and everything else, we’ll see some people say that we are more suspicious of law enforcement.

And it helps really, broach the gap between do we– is our default to believe these people or to not? And after we do law enforcement officers, it’s a much easier gap to get to and jump to get to your more specialized experts, whether it’s medical experts, accident reconstructionists, things like that.

Ted: Okay. And so along the lines of people trusting police [00:11:00] more, I had an attorney mention… I asked him, what are some things that might look an expert, not credible? And he mentioned that sometimes medical experts will come with their coat like they just came from the job, I think, right? would that– Is that also the case for police officers?

is it more credible when they wear their uniform, they’re in blue with the badge on, or do they also go with just, maybe formally, like a suit and a tie?

Ally: It really depends. They’re going to be, and it will depend on their rank too, right? Detectives aren’t necessarily going to be in a uniform all day, every day anyways, so they’re usually gonna be more likely to show up in a suit versus a patrol officer who I’ve had a murder trial where a patrol officer walked in looking like death, saying, “I just worked all night.

I’ve worked so many hours, and now I have to stay up.” And that poor officer, we [00:12:00] later actually didn’t end up getting to them till the afternoon, so they slept in their car that morning. And it will depend sort of situationally. If someone puts on the uniform specifically for the testimony, that can look a little bit like pandering to the jury.

As long as it’s done authentically and it matches their role, I don’t think it matters a ton. Usually based on the testimony and the investigation they did, it’s gonna be abundantly clear that they’re a law enforcement officer and they are or are not credible based more so on what they say than on how they look.

Ted: Okay. So someone’s got their coat just ironed, their hair’s like fully fresh. It’s okay, you didn’t come from surgery right now.

Ally: Yeah. And if you’re someone that’s clearly an academic, right? And maybe you’re in medicine from that academia standpoint, and then you show up in a lab coat or something, people are gonna be like, “What are you doing? [00:13:00] Why, why would you try to present that way?” Because everyone’s got a pretty good gut check, right?

And that’s really what, at the end of the day, when you boil it down, we’re relying on when we listen to experts and expert testimony. So we’re going to look at your presentation and is it reAllystic? Is it true to you and the role that you’re saying you actually have in this case? And then from a basic likability standpoint, do you look palatable to the average juror?

or do you look like a disheveled mess? Because then you, if you look disorganized or unkempt, then they’re gonna be like, “If you don’t pay attention to this, then I don’t know how much attention you pay to your reports and everything else.” So it’s really the overall polish matters and whether or not what you’re wearing makes sense for the circumstances.

You just don’t want it to be distracting. You want the focus to be on their actual opinion and not [00:14:00] how they look when they’re doing it.

Ted: Yeah. Okay. It, so it also sounds like it’s very judgmental based on appearances, right? Like people will judge the experts, the attorneys, the defendant, based on how they look

Ally: Yeah. And it can be, and that’s– There’s a reason why when I have in-custody clients and they go to trial, we get court orders to have them put in a suit or in dress clothes for the trial, right? Because when jurors see them in a jail jumpsuit, of course, they’re going to subconsciously think, “This person is in jail because they did something wrong, and what did they do wrong?”

And you don’t notice, people aren’t maliciously trying to make judgments about people more often than not, but it affects how you perceive people. And experts are the same exact way. You want someone that is airtight in their testimony and in their opinion, [00:15:00] and you don’t want the outer layer of how they’re delivering that message.

You don’t want it to distract from the actual points. You want that to be something where the people kind of, “Nope, this is a stranger. Okay, this is what they look like.” And then the second they start talking, that, that veneer fades away, and they’re just focusing on the substance

Ted: Gotcha. Okay. Very interesting about the defendant being in a suit and not the jumpsuit, because the jury does know they’re currently incarcerated, right?

Ally: No. So what they do is they’ll bring the client out, and listen, can they figure it out if they really put their mind to it? Of course. We can make those logical conclusions, but they have the jury wait in the hallway. They actually bring the client out from the side room where they’re held in the courthouse, and they bring them out dressed and put them at the table.

They’re not cuffed or anything, [00:16:00] barring very severe cases and situations, but usually they’re just sitting right next to you. There’s a deputy nearby, but that would be the case anyways. And then the jury comes in, and they just see you and your client sitting there in a suit. If they never see the client in the hallway of court, then they can probably figure it out.

But the purpose is to never belabor the point that they are incarcerated, because then you start to think, “Okay, well, why aren’t they safe to be out? What’s going on where we don’t trust this person to even be out during their trial?” And it taints the process.

Ted: Gotcha. Okay. So normally the defendant would be in the hallway with the jury, like they would all be mingling together?

Ally: In San Diego, everyone waits in the same place

Ted: Okay. Interesting. for some of the experts that you worked with, of course, without mentioning any names, I know you’ve mentioned medical experts. [00:17:00] what specific area of medicine do you usually work with?

Ally: So it can really depend on the circumstances. In criminal law, we tend to have two buckets of types of experts we need. In, like civil law, we have litigation, right? Where it’s a very specific triable issue, and we’re going to get medical experts to write specific reports about specific issues and the facts of the case and then come testify about it.

That could be anyone. It could be an independent medical examiner. It could be some sort of criminalist or someone with a specific chemical background where they can talk about the effects of drugs and alcohol on blood levels, interactions with other medications, how, things like physical injuries can affect the chemical levels that we’re working with, as well as medical experts that [00:18:00] are forensic experts, meaning they’ve evaluated the client and they’re making an opinion about the client’s state of mind or diagnoses that could be relevant.

So that’s normal with what you’ll see in civil law as well. But in criminal defense, we also have experts that do a lot of behind-the-scenes stuff. They might not even testify in court at any point, but they’re used for what we call mitigation. Mitigation is not necessarily saying the client didn’t do it, but saying, “Hey, listen, of all the people that commit these types of crimes, my client has more stuff going on that helps sort of explain how we got here, and this is why we shouldn’t throw the book at this person.”

And we can get forensic experts, psychologists, and people of that nature to speak to the client to get into their background history, maybe any prior conditions that were not diagnosed, misdiagnosed, things like that. And [00:19:00] that could be a clinical or a forensic psychologist. We like having, within the medical provider realm, we like having a sex offense-specific person that can weigh in on risk assessments and things like that.

And those people may never show up in court for a given case, but they’re doing really important work for us on the back end, so we can try to settle a case without having to take it all the way to trial.

Ted: Oh, okay. So mitigation happens, before deposition

Ally: We actually don’t have depositions in criminal law. it’s funny. It’s one thing that would be so helpful. What we have instead, and this applies to many jurisdictions, but especially in California where I am, we have a preliminary hearing, which is a pretrial hearing that happens. It’s a probable cause hearing.

It’s about halfway through the case, and the prosecution brings in multiple officers. Sometimes they’ll have experts testify at [00:20:00] that point. Sometimes they’ll save them for trial. But that’s really the only time we get to preview witnesses live on the stand or get that sort of deposition sense. but we don’t get to depose people in the conventional way you would in civil law.

So a lot of times the first time we’re ever hearing from someone live, other than reading their reports and seeing their materials, is when we hear from them on the stand, and likewise for the prosecution if it’s a defense expert. It’s fun. Keeps you on your toes

Ted: Is, yeah, it’s like a surprise, right? Do you know why that is, why criminal law has a preliminary hearing but not deposition and civil law does?

Ally: Generally speaking, I don’t know that the deposition process would be as fruitful for criminal as it is for civil because we do have, we have a lot of things that are happening live in the investigation that’s all pre-recorded on body-worn camera [00:21:00] footage, and we have an abundance of reports and everything on the front end that tend to apply to us where the person’s narrative is memorialized well in advance.

I think if we tried to depose every single witness in every single criminal case, the system might collapse. I just don’t know that we have the bandwidth and, we just have different processes where it’s not necessarily like we don’t have ways to get the same information. We just package it a little differently in criminal law

Ted: Gotcha. Okay. So the deposition does take a lot longer, and since there’s more people involved, more experts, more witnesses, then it just makes it a much bigger case

Ally: Yeah. And because in a deposition you could have information that’s not actually admissible that you would never allow a jury to hear. And in a depo, one person– You could ask a witness a question, right? [00:22:00] And I could object, but there’s no one ruling in the moment about whether or not it’s admissible. I’m just preserving my objection.

And then the judge is later gonna have to determine whether a jury could hear that or not. So you tend to get more information than is admissible or necessary in a depo. Whereas in criminal law, we’re usually working those issues out either in motions at the beginning of trial saying, “Hey, listen, I know they’re gonna bring this up with my expert, and I don’t think this is admissible, and they shouldn’t be able to get into this.”

And then the judge can rule ahead of time or we’re objecting live in the moment in front of the jury, and the judge is making evidence decisions or testimony decisions as our expert’s on the stand.

Ted: And going back to what you said about some experts only being hired during the mitigation that may not be used at trial. I know, some other attorneys have mentioned that [00:23:00] experts can be hired either as an expert witness or as a consultant, and sometimes both, like depending on the order that they do it.

Would these experts that you bring in for mitigation but not trial, would those be more of a consultative expert that you bring into the case?

Ally: Essentially how it tends to work is in the example of a forensic psychologist, what we’ll do is we will basically retain them understanding it is to review the discovery, to meet with the client, interview them, test them, and to draft the report. In theory, maybe later on they might need to testify, but it’s with the mutual understanding that we’re not.

That’s a bridge we’ll cross if and when we get to it, and we probably won’t. So we will retain them for those three things first. And the best experts, quite frankly, often are ones that will be really communicative during the process. [00:24:00] So they’ll maybe take a flat fee, for the expert fees, and then they’ll bill against it hourly.

And I love my clients. I don’t think anyone has better clients than me, but I also sometimes have a wild card or two in criminal defense, and I don’t necessarily want an expert that is going to know as they’re learning about this client that this is going to be a terrible report and that I’m not gonna be able to use this no matter what.

I would rather have an expert that calls me and is like, “Hey, Ally, do you want me to write this report? ‘Cause it’s kind of like you’re not gonna like anything we have to say, and you’re not gonna be able to use it,” and that’s fine. I would much rather have someone that communicates that early than either writes a terrible report that I still can’t use but now the client has cost the client even more money or someone that’s going to try to gloss over everything.

I’ve seen it in your past guests. We talk about [00:25:00] hired guns, right? We don’t want a hired gun. We want someone honest because those are the people that are credible. some of my favorite experts are brutal sometimes, and they’re the gold standard in their practice area for experts because then when I give you a report that says my client’s an angel and not a risk to anyone from that person, it’s so much more believable because everyone knows that that person doesn’t say that just for the sake of it.

So I like experts that communicate, and if it’s gonna be a terrible, terrible report or situation that tell me early so we can just kind of leave it where it is, and then experts that won’t bend over backwards to try to make sure they’re giving me what I wanna hear because I only want that if it’s the truth.

Otherwise, we lose credibility across the board.

Ted: Yeah. Okay. And for the experts that do call you and tell you, “Hey, Ally, this is just… [00:26:00] It doesn’t look good for you,” they don’t write a report for it or anything,do you drop the case at that point? Or what’s your strategy when that happens?

Ally: Our strategy is really just I don’t drop the case because what we’re doing at the expert stage, especially when we’re talking about mitigation, is I certainly don’t use whatever it is, right? Because it’s not going to be in the client’s best interest. But, and we then sort of say, “Thank you so much for your help.”

It’s not on the expert, right? That it didn’t go, it wasn’t favorable. They’re doing their job and they’ve finished their job. But I’m gonna stay on the case unless the client’s doing something that’s ethically concerning. The client is trying to lie or the client is trying to do something that’s putting all of us in a precarious situation, then I would consider withdrawing from the case.

But if it’s just information that’s not super helpful and the client is otherwise trying, we just [00:27:00] say, “Okay, we tried that avenue.” We know that that’s not a tool that’s gonna be available to us. A lot of that background investigative work and the workup of our cases is saying, “Okay, we’re gonna use every tool in our tool belt,” but we don’t always know what tools we have until we really get into the case and we try with different experts.

So maybe I don’t have a good forensic psychological report as I was hoping, but maybe I have a good on the evidence, an evidentiary issue we can try to pin down as well. So we’re just exploring all avenues. I’m not offended when an expert doesn’t pan out the way we want it to, and I also don’t knock the client for it unless the client did something really weird.

I had a client once show up to a forensic interview, allegedly on meth. So that was an experience, and the expert called me

and was like, “Ms. Keegan, talk to your client for a second.” So I spoke to him for a couple of minutes and [00:28:00] it became abundantly clear what was going on, and then I was like, “Thank you so much for your help.

You don’t have to interview. We’re gonna head out now,” and told the client, “Go home and we’re gonna talk about treatment programs now.” So there’s always ways we can try to meet the client where they are, but we, with clients, you never know. You know what I mean? You never fully know what you’re working with.

Ted: That’s what an expert’s for, to tell you whether it’s viable or not, Yeah. Wow. that was an interesting story. What would you say has been, like, the most shocking case where you– Like, the one that surprised you the most

Ally: One thing, I think the case I learned the most about was a trial a couple years ago. My co-counsel and I, it was about an adoption case, and it was about the age of an individual. So we had to find a really, really niche [00:29:00] expert on adoptions from a specific African country to explain to the jury how does this work when it’s not in a place like the US where our record keepings are very standardized, and we know exactly what sort of systems we’re working with.

I learned so much in that case, having an expert that was not a expert witness by trade or really at all ’cause they don’t make expert witnesses in that. It’s such a niche issue. So we called her and said, “Hey, we- can you- are you possibly positioned to be an expert witness for us?” And she was like, “What?

What do you mean? what does that entail?” sometimes you have to get creative with it, and it’s not necessarily an issue where you have someone that is in a very established area of expertise. It’s just a super, super specific issue, and you need to find the person that knows the most about it, [00:30:00] whether they’ve ever testified before or not.

And that was, legally it was a very interesting case

Ted: Like the laws around it? The case?

Ally: Facts around it. So the laws were super straightforward, and they were… The charges were things we’ve dealt with countless times before. But the issue as far as usually if I say, “Ted, how old are you?” You know exactly what the answer is, right? We’re not used to not necessarily knowing or having any way to question an actual age.

So something like that, it’s, I’d never had the issue before. I would be willing to bet I’m never gonna have the issue again in my practice. And you just, you find the issue, and then you’re finding an expert, but someone that isn’t a conventional expert witness that we’re used to. It might just be a random person that happens to know a ton about this.

That’s the best person for the job. So it depends

Ted: [00:31:00] I guess they just need to be an expert after all, right? In their field.

Ally: The court has to qualify them as an expert. That’s the first step. And then once they’re formally qualify as an expert and they’re testifying, you need to make sure that they’re credible with the jury. So it’s a two-step process. You need them first qualify so that they can testify at all.

And then once they testify, the jury just needs to recognize, “Okay, this person really knows what they’re talking about,” whether they’ve testified 100 times before or never

Ted: Wow, okay. And for admitting an expert,there’s that whole show Suits where the guy becomes a lawyer when, he’s not really a lawyer. Have you ever seen that happen in real life, maybe for a doctor or any other profession that has like an extensive academic requirement where someone just knows so much they get quAllyfied as an [00:32:00] expert?

Ally: In theory, yes. Not that they’re faking it, so not that they’re like Suits where he didn’t actually go to law school or pass the bar. but in the sense that it’s someone who doesn’t really have any particular credentials. The expert I mentioned with the age situation, she didn’t have any particular degree in that she didn’t have any particular certifications or qualifications necessarily.

She’d just been doing it for her entire adult life, so she knew the ins and outs of it just from having practiced it. I had a friend that once had a mechanic that was actually a civilian witness who had witnessed some sort of fight or something happen. So he just saw it as a normal person the way if I saw it on the street, I could be called as a witness.

But based on whatever the questions were, there were some sort of specifics about mechanics of cars, [00:33:00] and he was like, “No, that’s not possible. I just know that because of my mechanic background.” and they qualified him as an expert on the spot just because they were like, “Wow, this guy knows a lot about cars and mechanics.

So he came as a civilian witness, but we’re kinda gonna use him as both now for purposes of that hearing.” so y-you can really have a lot of wiggle room if they do, in fact, know what they’re talking about and you can establish that. Of course, education, credentials, work experience, always best case scenario.

You always want all of that ’cause it makes your job easier to qualify them as an expert, but it’s not necessarily the end-all be-all.

Ted: Okay. That’s good to know. Ally, thank you so much for being here. I know we went a little bit over time. if you have any last parting advice for experts or other attorneys, please feel free to share it

Ally: Yeah. Thank you so much for having me. I really appreciate what you’re doing here and how you’re connecting [00:34:00] people. I would say for expert witnesses, just do the best job you can do. Your reputation, like attorneys, is going to be everything, right? Your work product at the end of the day is going to be the difference between whether you get called back and referrals from one person or whether you never hear from them again.

And the best way you can demonstrate that you’re the person for the job is to do a good job through other people. And when you build that track record, attorneys talk to one another, and we like to refer people we know and trust and have worked with to our friends and our colleagues. So as long as you do that, you’re gonna be okay

Ted: Awesome. thank you so much for being here, Allie.

Ally: Thank you