GPSolo Magazine - April/May 2006
Many articles and books have been authored on the effective use of expert witnesses from the attorney’s point of view. Major CLE programs are offered on the topic. Compelling courtroom war stories abound with tales of expert witness triumph and tragedy before a jury. Abundant case law and the fundamental rules of evidence delineate the role of an expert witness in litigation. Many learned legal treatises help explain this large body of black letter law.
Yet, half of the courtroom dynamic is largely overlooked. The perspective of the expert witness on the process is generally not brought to light. If not understood, the view of the expert on the litigation process is lost to the lawyer, and ultimately the jury is deprived of useful information.
A Failure to Communicate
Too often, much remains unspoken between the expert witness and the retaining attorney. It is as if each individual assumes the other has inherited by instinct or acquired via osmosis the relevant information. And too often, the information they do exchange is wholly procedural: hourly rates, number of records to be reviewed, and deadline for production of expert reports or opinion summaries. The bare essentials of communication find the attorney delivering a set of litigation expectations to the expert. Yet, the expert witness has important expectations of the attorney as well. The attorney should be aware of them.
These expectations reduce themselves to two words: full communication. This simple concept includes honesty, open access to all case records and information, no secrets, and no surprises.
The expert anticipates that the retaining attorney wants to hear what that expert truly thinks about an issue. After all, the lawyer is paying the expert precisely for this honest opinion. Experts understand that an initial opinion unfavorable to the lawyer’s case may preclude their use at trial. Nevertheless, the expert desires no backlash at a limited, qualified, or less than fully favorable opinion once all the records and information are reviewed and the time is spent. Experts have no desire to be criticized or ostracized for speaking their view of the truth.
The expert wants assistance from the retaining attorney in preparing a thoughtful, well-supported opinion. This does not mean the attorney supplies only positive records or data and prepares the opinion for the expert’s signature. It does mean the lawyer can be helpful by organizing all relevant data, both positive and negative, to the extent possible. The organization of the material will vary from case to case, but there must be some system involved. Data organized by subject, author, or date is much more appreciated than a tangle of paper in a box or a disk of data “as produced” to opposing counsel. Organized data will also result in a lower fee from the expert. Searchable electronic data is a reasonable alternative.
Note that most case law across the country allows full discovery of communication between an attorney and retained experts. No attorney work product or privilege protects attorney-expert interchange. Written factual summaries or timelines prepared by the attorney may be discovered.
At the outset, the expert needs the attorney to specify the scope of the opinion requested. Only the attorney knows how each witness fits into the overall trial picture. It is the responsibility of the attorney to make sure the opinion of the expert dovetails without gaps or overlap into the trial. The expert looks to the attorney to clearly define his or her role in the case. It is also helpful for the expert to know generally how that role fits into the overall case. Equally, the lawyer must tell the expert what topics are outside the scope of his or her opinion.
The attorney must candidly appraise whether the expert’s qualifications and litigation experience match the scope of the opinion to be prepared. Experts need to be told if there are perceived shortfalls in their credentials. This discussion may shape the scope of the opinion or simply require further explanation of an expert’s background or experience in the CV.
Forewarned Is Forearmed
From the expert’s perspective, it is imperative that the attorney fully prepares him or her for deposition and trial testimony. Experts sincerely want their testimony to be of help. They also want to protect their reputations. By necessity, experts rely on the attorney to safeguard deposition and trial testimony from surprise and embarrassment.
To this end, the attorney must inform the expert of new case information or documents, changes in the position of other experts, and court rulings that may impact the expert’s testimony. Experts often find it useful if the attorney provides deposition testimony of other experts in the case. The attorney must also preview the specific direct examination questions to be asked at trial, as well as expected areas of cross-examination at deposition or trial. The expert hopes to hear the difficult questions first from the retaining attorney and not for the first time on cross-examination by the opposing attorney. Along the same lines, the expert expects some guidance on how to respond to cross-examination. Should questions be answered as simply or expansively as possible? The attorney also should inform the expert about the courtroom environment established by the trial judge.
An expert relies upon counsel for protection from unexpected litigation strategies invoked by the opposing attorney. For example, because of a Daubert or other foundational challenge, an expert may be barred from testifying. This testimonial blemish could be devastating to an expert. A single denied opportunity to testify could be the first in a cascading fall of dominoes for an expert.
Similarly, opposing counsel may attempt prolonged financial or deeply personal discovery against an expert in an attempt to establish bias or otherwise discredit the person. Resisting this discovery requires time and money—at the extreme, the expert might need to retain personal counsel. Most experts trust that the attorney who retained them will pay the associated costs. These expensive discovery skirmishes are typically designed only for the sake of harassment and to drive a wedge between the expert and the retaining attorney. Rarely do these issues actually appear before the jury for purposes of legitimate impeachment.
There are also many common courtesies that the expert hopes the attorney will observe. Foremost is the expectation of prompt payment of a fair fee. The attorney should honestly discuss this topic at the outset, including not just the hourly rate but also an estimated overall budget, including costs. To obtain this information the attorney must provide a candid appraisal of the record volume to be reviewed, original research to be performed, envisioned trial exhibits, and unique case aspects. If overall expense is an attorney or client concern, the expert trusts that the attorney will address this at the start.
Other courtesies include being kept advised of important case details such as opinion disclosure and deposition and trial dates, plus any modifications to same. Indeed, if the case is settled or otherwise dismissed, the expert hopes to know this as soon as possible for calendaring purposes. Also, only the attorney will know if there is a confidentiality order in place that in any manner limits the expert’s use of raw data or opinions in other cases, educational seminars, or general publications. Likewise, at the conclusion of the case, the expert expects to be told how the case records and the expert opinion are to be stored or discarded. Again, experts rely on the attorney to safeguard them from these traps for the unwary.
At the end of the day, experts hope the attorney is familiar with the litigation rules of combat and engagement. An expert’s opinions are only as sound as the information provided the expert by the attorney. Opposing experts typically reach opposite conclusions based upon the same universe of facts and information. Even under the fire of cross-examination, experts rarely change their basic opinions. However, they can be severely discredited in this case and many cases to come if they rely upon information that has not been thoroughly gathered, organized, or faithfully provided by the retaining attorney. Expert expectations are high. And so are the professional stakes.
Robert A. Zupkus is a partner at Zupkus & Angell, P.C., in Denver, Colorado, and is Secretary of the ABA General Practice, Solo and Small Firm Division. He is frequently an expert witness and frequently utilizes expert witnesses in his practice. He can be reached at firstname.lastname@example.org.