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November 30, 2018 Articles

How Not to Fail at Trial Because of Your Expert: Getting Started

Some introductory tips on best practices when working with expert witnesses

by Jeffrey D. Gardner and Jimmie W. Pursell Jr.

1. Choose Wisely

Fans of the Indiana Jones movies will recall an infamous scene from The Last Crusade in which the Grail Knight offers the antagonists first chance to drink from the Holy Grail and receive eternal life. The catch? There are many chalices from which to choose but only one Holy Grail. “Choose wisely,” says the Grail Knight. Spoiler alert: The antagonist Nazi drinks from the most ornate golden chalice, then suffers an agonizing death. The Grail Knight observes, “He chose poorly.” Indy, of course, wisely chooses the functional wooden cup of a carpenter. After all, the Grail was crafted by a carpenter.

Generally speaking, an expert witness will not win the case for your client (or grant your client eternal life), but he or she can help you put your client’s case over the top, help solidify liability or damages, or help with a particular claim or defense. However, choose the wrong expert and you might feel a bit like our antagonist who chose the ornate golden chalice. Cases can be derailed, quickly, depending on the performance of an expert witness. An attorney who represents a potential plaintiff in litigation needs to know before the case is filed whether an expert witness will be required. A defense attorney also needs to be thinking of expert witness needs at the time of engagement. Equally important, all attorneys need to communicate early and often with their clients about expert witness needs and factor them into the litigation budget.

Much as in the selection of chalices, the Holy Grail expert might not be the flashiest or most ornate. The wise attorney chooses the expert who fits the case. A well-credentialed expert with a broad knowledge base may seem attractive, but the specialist with only a few cases under her or his belt but possessing a laser focus of expertise in the relevant subdiscipline might well be the wiser choice. So how do attorneys choose wisely?

2. Start Early, Thoroughly Vet, and Engage

Clients (as well as insurance carriers) have a natural and understandable desire to delay the actual engagement of consultants and expert witnesses. In today’s highly competitive legal environment, even defense attorneys are prone to drag their feet in engaging expert witnesses. We all know the primary reason why: money. Even when client and counsel are on the same page regarding the absolute need to engage expert witnesses, there often is a tendency in litigation to wait until the last minute to turn on the second burner. Do not make that mistake. Although a high percentage of cases settle before trial, most cases do not settle before expert disclosures, reports, and depositions occur. This means that it is substantially more likely than not that a case that calls for an expert witness will survive past required disclosures and depositions; in turn, that means that a client is almost certain to incur expert witness fees and costs anyway. Engaging an expert witness too late increases the likelihood that the expert’s report, or the expert himself or herself, will be vulnerable at deposition or trial. Waiting until a deadline looms also means less time to fully vet the expert or even to fully explore options. With a week remaining before a disclosure deadline, there is a tendency to emphasize quick engagement rather than quality. In such cases, we too often reach for the well-credentialed (gilded) old standby rather than the hand-picked wooden chalice with the laser focus. Thus, delaying the engagement of an expert witness may carry much greater cost than early-stage expert fees. Equally important, the right expert witness can help shape the discovery process and can often bring value that far exceeds the early costs incurred. Expert witnesses may also provide significant value in advance of, or as part of, mediation.

Starting early also allows you to conduct sufficient due diligence on potential expert witnesses and confirm there are no conflicts. Attorneys must expect opposing counsel to investigate and vigorously challenge their expert witnesses’ qualifications; there is no more direct way to diminish an expert witness’s credibility, and credibility is the linchpin of the expert witness realm. Attorneys must start with an expert’s curriculum vitae and confirm that it is accurate and without unexplainable gaps. Attorneys must confirm that the potential expert has specialized knowledge of, and sufficient experience with, the relevant subject matter. Attorneys must review an expert’s publications to make sure that they contain nothing that is too damaging or that will provide fodder for opposing counsel. It is critical that attorneys explore the potential expert’s prior experience in depositions and trial, and investigate any issues where testimony has been successfully challenged, excluded, or even worse, openly called into question by a judge. Think hard about which side an expert normally testifies for. An expert who testifies equally for plaintiffs and defendants frequently appears less biased than one who testifies almost exclusively for one or the other. In 2018, due diligence also includes thorough research into the social media space. Assume nothing; you might just find a YouTube video of your prospective expert witness getting shredded during a deposition.

Finally, personally interview the potential expert witness before engaging him or her. An impressive résumé or experience must be a given but is never enough. Jurors observe everything; therefore, the prospective expert witness must be able to relate to jurors and convey complex information in an understandable and credible fashion.

3. Locate the Expert Witness

If you are reading this article, you almost certainly are a member of the American Bar Association’s Section of Litigation. If you are otherwise not very active with the ABA, now would be a good time to start. There is no better resource for locating expert witnesses and getting excellent feed back on a potential expert’s strengths and weaknesses than by securing such information directly from attorneys you know and trust and who either retained or have gone up against expert witnesses you may be considering. The ABA is a gold mine for this type of information. In addition, expert witnesses often show up on ABA panels; attorneys can literally conduct due diligence while evaluating potential expert witness presentations on the exact subject matter of the litigation. The same often holds true for state bar associations. Reach out to attorneys you know who practice in the relevant area, and canvass these contacts for recommendations, comments, and criticisms. As strange as it might sound, expert witnesses can also be excellent resources when it comes to locating specific expert witness needs.

Attorneys should also investigate books, articles, and other publications, as well as case authority in the subject matter of the litigation. Reviewing such materials will almost certainly help identify individuals who could serve as subject matter experts. Finally, attorneys can conduct general Internet research or can elect to engage a service and pay to locate potential expert witnesses.

4. Be Careful with the Expert’s Agreement

Once you have whittled down the list of potential expert witnesses, document the engagement with a written agreement. Oftentimes, the expert witness will have a form that he or she insists on using. Resist the urge to simply sign the form. It is stunning how bad some experts’ proffered engagement forms are—given that the expert must anticipate the questions to come from opposing counsel. A concise and straightforward agreement that identifies the litigation matter, who is engaging the expert, who is to be invoiced for the expert’s time, who is paying the invoices, and, of course, the terms of expert compensation should suffice. (Obviously, attorneys must be on the exact same page as their clients about who will be paying the expert’s invoices and must document that understanding in writing.)

5. Know the Rules of the Forum and Set Communication Protocols from the First Conversation with Your Potential Expert

The law regarding the discoverability of attorney-expert communications, including draft reports, remains varied between federal and state courts. As federal practitioners know, in 2010, the Federal Rules of Civil Procedure were amended and now protect from discovery draft reports and certain lawyer-expert communications. Rule 26(b) protects drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded. Rules 26(b) also shields certain communications between the attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communication, except to the extent that the communications (1) relate to compensation for the expert’s study or testimony, (2) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed, or (3) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed. The committee notes on the amended rules further indicate that the work-product protection for a draft report applies regardless of the form of the communication, whether oral, written, electronic, or otherwise.

The problem is that not all states follow the Federal Rules of Civil Procedure. There is a danger that written attorney-expert communications—including communications that contain an attorney’s work product—may be discovered outside the federal forum. Expert witnesses also need to be careful about any and all writings that they generate and be mindful that, depending on the forum, such writings might be discoverable. Therefore, the attorney and expert must discuss and agree on communication protocols at the outset of the engagement so that everyone involved knows exactly what can be placed in writing and what should not be. Best practice dictates that any and all questions about what should be in writing should be discussed orally with the attorney.

Jeffrey D. Gardner is a vice-chair of commercial litigation and Jimmie W. Pursell, Jr., is a member with Jennings Strouss in Phoenix, Arizona.

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).