Litigation 101: Checklists for New Litigators
Identifying and Retaining and Expert Witness
By James W. Creenan
One of the most critical pretrial litigation tasks involves the identification and retention of an expert witness. In many situations, the task may be easy due to the limited number of qualified experts, making identification an easy task. In other cases, there may be so many possible experts that the selection process will seem unmanageable.
Whether you require an expert for a simple slip-and-fall case or a complex multi-party construction dispute, the task of identifying and retaining an expert can yield substantial rewards at time of trial if you follow several simple steps. Although your case or your client may require special handling, the following pointers will get your expert selection off to the right start.
- Start Early. You otherwise may find that your opponent has already selected the best expert.
- Before beginning your search, be certain that you know the rules. Before contacting or even considering an expert, you must know and understand the applicable rules. Your starting point should be Federal Rule of Evidence 702, which governs the admissibility of expert testimony, and Federal Rule of Civil Procedure 26(a)(2)(B), which requires disclosure of the expert’s identity and issuance of a written report.
- Understand the law of experts in your jurisdiction. In the federal courts, it is no longer enough to understand just Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) and Kumho Tire v. Carmichael, 526 U.S. 137 (1996), because the circuit and district courts have continually addressed and refined the standard for admission of expert testimony. In state courts, your approach may vary depending on whether Daubert or Frye is the controlling standard. There is no substitute for mastering recent developments in your jurisdiction.
- Define the role your expert will play during discovery and trial. Do you simply need a credible report or is there a certainty that deposition or trial testimony will be required? In states requiring a Certificate of Merit for professional liability claims, the certifying professional may not need to be your testifying witness. If the need for assistance is to provide technical assistance during discovery and trial, then your expert’s role would be as a non-testifying consultant. It is critical to define the proposed expert’s role prior to making an engagement.
- Understand that every word you communicate might be discoverable. You might be surprised to learn that your work product, if in the hands of a testifying expert, may be considered discoverable. Although Rule 26(b)(3) shields work product from discovery, most federal courts have required disclosure of work product shared with the expert in preparation of her opinion. By extension, you should assume that your communications – both oral and especially written - to the expert may be deemed discoverable. Therefore, your written communications must be neutral and should only communicate objective facts.
Retaining the Expert
- Obtain client approval if necessary. First and foremost, the client should agree with your selection and the client’s points of view must be factored into the decision.
- Communicate your decision to the expert. After a final decision is made, you should confirm the engagement with a phone call to the expert and a simple confirmatory letter. The phone call should confirm what materials the expert is to review and the letter should provide the available materials, indicating that additional materials will be forwarded when received. Understand that the letter may be discoverable, so it is imperative to avoid any suggestion of the expert’s expected opinion or conclusion.
- Agree on a clearly defined scope of work and budget. Before confirming retention, it is a good idea to discuss again the expert's anticipated fees based on the scope of the engagement. Will the expert require a comprehensive engineering study of the failed construction project? Or, will the expert be able to respond to your opponent’s opinions by referring to the project documents and performing a mere record review? A reasonable hourly rate will not save your client from an over-zealous expert that spends every waking hour thinking about the case. The expert should agree to alert you if additional testing or other experts will be required to complete his opinion.
- Lay the ground rules for a productive engagement. An eager expert might be prone to provide a preliminary written report before receiving all pertinent information, while a seasoned expert knows that all information (documents, deposition testimony, and other reports) should be reviewed prior to arriving at any opinion and memorializing it in writing. Your expert should understand that you do not require any work, including preparation of a report, until you direct so.
- Develop an agreed-upon schedule based on case deadlines. The expert should be aware of the case’s major deadlines and should agree on a schedule for delivering the opinion.
- Close the Deal. If your candidate cannot meet your expectations after going through this process, then you should find another expert. In all likelihood, by the time you reach this point, you have identified and retained a well-qualified expert that will add value to your client’s case.