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As with many other aspects of litigation, one of the best ways to approach working with an expert is to start by thinking about the end of the process and then tailor your work in the earlier stages of the case to suit that end result. So, if you expect that the expert you have retained1 will testify at trial, your approach to the preparation stages will be different than if you know that only a written report will be needed under the circumstances. Similarly, if you have retained the expert as a consulting, rather than a testifying expert, the nature of your interactions with him or her over the course of the case likely will be very different. Other factors to think about in assessing the expected end result of the expert’s engagement include:
Each of these considerations will shape the way that you communicate with the expert over the course of the case, the types of information that you provide to the expert, and the types and manner of analysis that you ask the expert to undertake.
While your approach to working with an expert should be driven by the desired end result, the key to a successful engagement is that your efforts with respect to the expert not be an afterthought. The most rewarding — and issue free — expert engagements will be those in which the attorney has thought out — in advance and from the beginning — what the expert’s role will be, what rules apply to the engagement, what methods of communication are appropriate under the circumstances, and any other factors unique to either the expert or the case that might aid or hinder the expert’s work in the matter.
The following points set forth certain common aspects of working with experts that you should consider at the outset of the engagement. This set of points is by no means exhaustive and each case will bring its own unique circumstances for you to consider, but these points should aid in beginning to think about the types of issues that may come up over the course of the case.
Role of Expert. Decide the role of the expert (or experts) in your case from the start. If you have identified a testifying expert, is there also a consulting expert with whom you will work to develop points behind the scenes? Federal Rule of Civil Procedure 26(b)(4)(B) provides that the facts, opinions and bases therefore of consulting experts can only be obtained as provided in Rule 35, or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. Be sure to identify which experts will serve in which capacities upfront keep the lines and methods of communication with each appropriate to their function to avoid being required to disclose information to your opponents that you did not intend to share.
Know the Rules That Will Apply to Your Case. Before you even speak with the expert that has been (or will be) retained in your case, be sure that you understand the applicable rules and case law governing the admissibility of expert evidence and the disclosure of information relating to the expert (including, but not limited to Federal Rule of Evidence 702 and Federal Rule of Civil Procedure 26(a)(2)(B)), as well as the law as to the admissibility of expert testimony (again, including but not limited to Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993), and Kumho Tire v. Carmichael, 526 U.S. 137 (1996)). These rules and standards should serve as the touchstone for your efforts in working with the experts — either in developing the kind of information and analysis that will satisfy the applicable tests for admissibility or in avoiding the potential pitfalls befalling excluded expert testimony.
Have a Communications Plan. Depending on the role you have determined that your expert will play in the case, and the rules applicable to that type of role, you and other attorneys or paralegals interacting with the expert should be aware of and adhere to a plan for the methods and protocol for communicating with the expert. The more visible your expert will be in the case ( i.e., whether they will testify, issue a report, etc.), the more conscious and deliberate you should be with the manner in which you communicate with the expert (this goes for e-mails, telephone calls and messages, notes from meetings, providing documents to the experts, drafts of analyses and reports, etc.). A vital aspect of implementing this plan is to discuss it with the expert. Do not take for granted that the expert shares your understanding as to the discoverability of their notes, analysis or other materials, even if the expert is what you would consider to be an “experienced” expert.
Set the Ground Rules for the Case. Evaluate and enter into, if appropriate, an agreement with your opposing counsel as to the method, timing and limits on expert disclosure in your particular matter. While the disclosure of certain types of information may be required under the rules applicable to your case, you will often have the opportunity to craft your own rules of engagement when it comes to experts. Frequently, both sides will agree that certain limits on disclosure, or being more specific as to the requirements as to the disclosures that will be required, is beneficial to their interests. These agreements are most valuable when entered into early, so that you and the expert will be able to communicate at the early stages of the case with a clear understanding of what will and will not be provided to the other side at the end of the case.
Arm Your Expert. Having by now thoroughly reviewed the requirements for admissibility of expert testimony, you now will seek to provide the expert with the information from the case that will assist the expert in understanding the issues and performing his or her desired analysis. At this stage (and continuing through the conclusion of the analysis), you assess the information available in the case and identify the set or subset of information that should go to the expert to consider.
It is just as important to arm the expert with the information that might be considered less-than-helpful as it is to provide your expert with the information that will make your case. By providing this information to the expert early and fully, you allow the expert maximum time to process and analyze both sets of information and reduce the sting of any bad documents or potentially confusing or contradictory testimony. In deciding where to draw the line as to what information to share with the expert, consider the questions that an opponent will ask the expert at a deposition: “In reaching your opinion that X, did you consider Y?” “Would the expert’s analysis be incomplete or subject to criticism if he or she was not provided with a particular piece or set of information?”
Cost and time also will factor into the analysis as to how much information to provide the expert, and in what way. While it may be faster and easier to dump data or documents on the expert in broad swaths for him or her to review in the course of the analysis, doing so may be counterproductive to the client’s interests. Not only does having the expert (and/or his or her staff) review the materials in raw, un-culled format (particularly where the attorney has likely already reviewed and processed the information in some way) create unnecessary duplication of costs, but doing so also may prevent the expert from reaching the most important information and force him or her to spend precious time on merely processing rather than on the analysis.
You should also track any items sent to the expert to ensure that the expert will be able to comply with the applicable disclosure requirements down the line.
Let the Experts Help You Help Your Client. In addition to facilitating the expert’s affirmative analysis, the expert — and his or her expertise — also can play an invaluable role in offensive discovery by assisting you to determine what discovery the attorney should be requesting from the opposing party. Because the expert discovery phase often is staged at or around the time that fact discovery is concluding, this is an area where thinking and planning ahead will pay dividends. The scope and budget of a given matter may dictate certain limits on your ability to engage the expert fully on fact discovery, but to the extent that an expert has been retained early on, he or she can be one of the best resources for identifying what to ask for and how to ask for it.
Be Your Expert’s Toughest Critic. Though professional courtesy is the rule, you will help neither the expert nor your client by serving as a passive facilitator. You are in the best position to pressure test the expert’s analysis and should not hesitate to do so.
About the Author
Bridget K. O’Connor is a partner at Kirkland & Ellis LLP in Washington, D.C. She is a general litigator, with experience in a variety of types of cases, including breach of contract, antitrust, securities, and class action suits.