Retaining Experts
Generally, an expert should be retained when a finder of fact will not possess the requisite skill or knowledge to understand a subject. Fed. R. Evid. 702 (providing that a person with specialized "knowledge, skill, experience, training, or education" can apply that to "help the trier of fact to understand the evidence").
This decision is case-specific, but as a rule of thumb, you should engage an expert if advanced education or specialized experience will help the judge or jury understand the case. An economist can explain a damages valuation model. A fate and transport expert can explain how waste reached a parcel of property. The key question regarding experts is whether an expert will help the trier of fact understand the issues. If so, you should strongly consider retaining one.
A junior attorney can be tasked with identifying potential experts. This is another daunting step for some, who may be more familiar with Westlaw searches and Bluebook citations than scouring academia or industry for expertise. Fortunately, there are a great number of resources to mine beyond Google. Many bar associations maintain directories of experts. Legal publications often have advertisements from expert consulting agencies. (Be careful of these, however. If the ad is easy for you to find, opposing counsel likely will find it as well, and may use it to demonstrate that the expert is merely a "hired gun.") Thomson Reuters (the publisher of Westlaw) and others provide search services for experts in a variety of fields. And never underestimate the value of simply asking another attorney; expert referrals from a trusted attorney are well-worth seeking out.
In your search, you should be conscious of the qualities your expert should have. Most potential experts will have an impressive background, such as advanced schooling and professional experience. But you must make a broader inquiry: is this person the right "fit" for the case? This question of "fit" is more art than science, but should not be overlooked. Does she present well? Will a jury trust him? Does she seem "too academic"? Does some aspect of his personality or background highlight facts in the case that you want to minimize? Is she going to be difficult to work with? All of these questions should be considered before retaining an expert. It is therefore critical to meet with potential experts in person.
Working with Experts
Always review and challenge the expert's opinions, and trust your instinct in the process. If it doesn't make sense to you, it probably won't make sense to a judge or jury either. In the most extreme cases, experts can stumble right into a Daubert challenge because their opinions were not adequately challenged before being presented.
Make sure to give experts as much advance notice of deadlines as possible. While associates may be all-too-familiar with scrambling to assemble work product on the eve of deadlines, experts may not. You do not want to find yourself missing a key part of your proof because no one notified an expert of a deadline.
Be clear about the exact scope of work and whether the expert has leeway to go beyond that scope. Some experts—particularly academics—tend to pursue subordinate questions that arise during their work on a case much further than they need to, down unexpected pathways, or even into opinions neither useful nor desired for the case. These "side trips" lead to large and unanticipated bills and, in some cases, less effective testimony. The expert should not drive the case, even when expert testimony is key evidence.
Don't be afraid to delve into and discuss the expert's opinion at some length. While the expert brings expertise in a particular area, he or she may have little or no familiarity with legal wrangling. All too often, expert opinions are written to be generally persuasive, an appropriate goal. But without linking that opinion to specific elements of legal claims or defenses, the persuasive value of an expert is drastically reduced. This is one of the attorney's key roles in working with experts: the opinion should directly support or negate specific elements of claims or defenses. It's not enough for an expert opinion to persuade someone that the expert is correct; the opinion should persuade a finder of fact that an element is established or negated.
Communications with Experts and Discovery
As in any relationship, clear communication with experts is essential. Attorneys must exercise caution when communicating with experts, as those communications are not absolutely protected from discovery. As a general matter, the federal rules protect communications between counsel and expert witnesses, with limited (though important) exceptions. The exceptions are for communications (i) relating to compensation, (ii) identifying facts or data upon which the expert relied in forming opinions, and (iii) identifying assumptions upon which the expert relied in forming opinions. Fed. R. Civ. P. 26(b)(4)(C).
In cases where both sides retain experts, it is worthwhile to discuss ground rules for expert discovery. If possible, parties should stipulate what precisely will be protected from discovery. For the cost of a discussion with opposing counsel, a skillful attorney can avoid costly fights over privilege issues. And whether agreement can be reached or whether the general rules of the jurisdiction will apply, ground rules for communications with experts should be communicated early and often to anyone working with the file, on both attorney and expert sides.
Keeping a log of communications between attorneys and experts is helpful, as are storage sites such as Dropbox or ShareFile, which allow documents to be shared easily. Having a Dropbox folder assigned to an expert also creates a log of what and when documents were shared. Technology has made this process extremely straightforward, so take advantage of that.
Preparing Your Expert for Deposition and Trial
The general rules for deposition and trial preparation of any witness apply to experts, and should be reviewed with the expert. Beyond the basics, however, many experts will benefit from a frank discussion about cross-examination. Particularly for experts without significant experience testifying, it is crucial to emphasize how aggressively opposing counsel may challenge experts.
Counsel should thoroughly question their own experts on every assumption and conclusion. Even more than a fact witness, an expert may be unfamiliar with having assumptions, analysis, critical thinking, or conclusions challenged. Some experts will need practice responding to aggressive questioning. Do not wait for opposing counsel to ask the tough questions—you must put the expert in position to succeed, and that means preparing for an uncomfortable examination.
Although the expert may be knowledgeable, do not assume that knowledge will guarantee effective communication. Particularly with experts who may be decades older, young attorneys tend to let the expert determine how best to communicate opinions. It is the attorney's responsibility to work with the expert to hone testimony that advances the client's position. If the testimony is equivocal, or undermines the client's position, it may be time to reevaluate the merit of your case. Even testimony from the world's leading expert in a field is ineffective if not presented in a manner the jury can understand. The obligation to advocate for the client does not end because an expert witness has more experience, but rather requires that you work with the expert to communicate in an understandable and effective manner.
Conclusion
Experts can be a critical piece in the litigation toolbox, and can expose attorneys to knowledgeable, experienced professionals in other fields. While working with experts can be challenging for young attorneys, it is also an excellent way to develop the skills and qualities that turn young attorneys into experienced and formidable attorneys. Addressing the key issues involving experts—searching, retaining, privilege, drafting reports, and preparing testimony—will improve legal skills, potentially save the client money, and put the client in the best position to succeed.
Keywords: litigation, commercial, business, expert witness preparation, Daubert, selection of expert, communications with expert