After two years of discovery and with a trial fast approaching, you receive your expert’s report. Everything you expected to be in the report is there. It is a powerful document. But will this dog hunt? Will your expert convince the factfinder - whether judge, jury or arbitrator - your position is correct? Before answering, think of the many lawsuits you have handled over the years where the factfinder completely rejected one or both of the experts’ opinions. How could this happen? But you know it does. How could the factfinder, or you, have gotten it so wrong?
October 08, 2018
The Argument for Both a Second Opinion of Expert Witness Reports and Brevity
David A. Scotti, Esq.
The problem is that you have been working on this case for so long you are too close to be objective. You know the facts cold. You know the law. You have spent considerable time working with your expert. The report is an embodiment of your collective wisdom. But now you are going to hand this report to a stranger, the judge, jury or arbitrator, who knows next to nothing about the case. They may have reviewed some of the supporting documentation and may have seen snippets of the deposition testimony. But mostly their time will be spent listening to witnesses whose testimony is then attacked by opposing counsel. Factfinders are there to distill the “true facts” from these raging debates. They are provided with lengthy “briefs” that argue the law and an expert’s report and hopefully it all leads to the results your client hopes for. This is when you need to think about brevity.
Handing the factfinder a stack of deposition transcripts, a few gigs of exhibits, 200 pages of legal briefs and a 500-page expert report, not including attachments, and hoping they can absorb it all is asking a lot. It also takes more time then they can reasonably devote. Think about the last arbitration you handled and how much time the arbitrator spent reviewing the record. Maybe there was a total of 40 hours spent reading your and your opponent’s submissions, which is not a lot. Given the limited time available, how much can you expect your factfinder will be able to devote to this? In this setting, what will be the impact of your expert’s report? Is that report written for the factfinder or you?
After spending one to three years living with the case, you have lost a lot of your ability to be objective in your evaluation. Before producing the expert’s report to the other side, what if you were to hand the report to another expert and get a second opinion? One thing that will be instructive in this process is when the second expert asks for the documents seen as critical to an understanding of the issues. You will begin to see how to pare down the avalanche of documents and testimony you had planned to present during your case. The amount of time it takes for the second expert to review your expert’s report will likely be similar to the amount of time spent by the factfinder in considering your expert’s opinion. This review by a knowledgeable person, with a limited knowledge of the case, with limited time, and who has access to a limited number of documents, is a more realistic method of evaluating the impact of an expert’s report. The cost is relatively small, but the insight gained should be substantial. This approach is not appropriate for all cases and may be best for the larger, more complex cases. Something to think about.