You have just returned from a lengthy out-of-town and successful jury trial where you learned a lot about mindfulness. Now, the reality of the expense of trial sinks in. The bills come and must be paid. Even though the large expert witness bill should be shifted to the unsuccessful plaintiff, you find yourself asking how you could have better managed the economics of trying this case with a single expert witness. Of course, the problem is compounded in the many cases where you are required to retain, prepare, and present multiple expert witnesses. How do you keep expert witnesses from breaking your litigation budget? Consider the seven tips below.
1. Shop Rates, Retainers, and Travel Expenses
We can learn a lot from insurance companies about negotiating financial terms with our experts. Insurance companies will frequently put a cap on hourly rates, require a discount for travel, and refuse to advance a retainer. Experts are left with the choice of saying “yes” to the proposed terms or passing on an assignment. For many experts, this work is their prime source of income, so you actually have bargaining power at the outset of the retention.
Employing good negotiating practices for your clients requires time, candor, and options. You cannot wait until the date for the exchange of expert witnesses and have any hope of negotiating favorable terms for your client. You need options in case your first choice won’t budge on terms.
2. Clearly Articulate the Scope of the Expert Opinion
The experts that have the credentials to impress a jury are qualified leaders in their fields. However, they are not the “captain of the ship” for your case. Before you seek to retain an expert, you must decide the scope of expert opinions that your client truly needs. Then, you can articulate that assignment clearly.
The benefits of the trial attorney defining the scope are tremendous: You can limit what materials are truly relevant for your expert’s opinions; you can formulate hypotheticals based on discovery that will help your expert organize his opinion; and you can keep your expert focused on the important issues.
The dangers of letting the expert define the scope should be obvious: The opinions can be wide ranging, difficult to present, and, in many cases, unnecessary for your client’s case.
3. Limit and Define What Your Expert Is Expected to Review
A significant amount of a typical expert’s fees is based on “review” of discovery. Let’s be candid—a lot of “discovery” isn’t directly relevant to the issues in dispute. You should be able to provide the “discovery” (including “negative” evidence) that will be necessary for your expert to form her opinion.
4. Make Your Preparation Meetings with Your Expert Meaningful and Productive
Experts typically are self-important and frequently view deposition and trial preparation meetings as an opportunity to impress the retaining trial lawyer with their depth of knowledge. Don’t let this happen. Plan the agenda for these important preparation meetings. Since opinions at trial will likely be defined by the expert opinions given at the deposition, take the time to meet with the expert and review not only his opinions, but the basis for his opinions. To the extent there are subjects that will be used for cross-examination, cover those with the expert. Prepare the expert for vigorous cross-examination. Do not assume that the expert will be able to withstand vigorous cross-examination unless you have seen him perform under fire very recently.
To be most efficient, bring the expert to your office, have an agenda, cover the points on the agenda efficiently with the expert, and then end the meeting.
5. Prepare Your Trial Examination Carefully
As the captain of the ship for trial, you know which opinions of your expert need to be emphasized by the time she testifies. Do not allow the direct exam to become a forum for the expert to impress the jury with her superior intelligence. Prepare the exam in advance and communicate the outline with the expert. Use hypotheticals to keep the focus. Tie the exam to the admitted trial exhibits (and make sure you give the trial exhibit list to the expert in advance).
6. Hire Locally When Possible
I am continually amazed at how much work goes into presenting a persuasive case in front of a jury. Worrying about the logistics of an out-of-town expert witness’s travel issues is the last thing that you want. While not always convenient for trial counsel, you need to retain an expert with the thought of how this expert will fit your case at trial. This includes considering, when possible, retaining an expert who is located near the courthouse. This will reduce the travel costs associated with bringing in an out-of-town expert.
7. Negotiate a Compromise from the Final Bill
Let’s face it: There are times when the expert’s performance at trial doesn’t meet expectations—either yours, or even worse, your client’s. When this occurs, you need to have a candid discussion with the expert about compromising her fees in the interest of having a satisfied client.
Managing an expert witness takes time, planning, and communication. An expert who is stubborn about doing it “his way” is probably not the best expert witness for your client unless money is “no object.” Which is seldom the case.
The author discusses the topic of this article as a panelist in the on-demand CLE webinar Expert Witnesses: Balancing Costs and Credibility for Solo and Small Firm Practitioners. ABA members can access this webinar for FREE by clicking here.
Published in GPSolo eReport, Volume 9, Number 3, October 2019. © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.