Scope of Work
What expert opinions are needed? Opposing parties must reach an agreement on what expert opinions are needed to resolve the dispute at hand. This can be challenging if the opposing parties have diametrically opposed positions and theories. In some cases, it may even require the expert witness to prepare and testify about contrary positions—one using each opposing party's facts and theories. The court or arbitration tribunal must preliminarily concur with decisions of the disputing parties about the expert opinions needed because the court or tribunal is the ultimate user of the expert opinions.
How much work is expected to reach the needed opinions? With cost and time to resolution the primary concerns, the parties will likely want to influence the work the expert witness will perform in order to reach the needed opinions. This may include limitations on the level of effort, materials to be analyzed, or witnesses to be interviewed. Regardless, the work necessary to reach an opinion is exclusively the decision of the expert witness.
What are the deliverables? The final work product of the expert witness can be customary (an expert report and oral testimony) or tailored to the specific needs of the case. The opposing parties and the triers of fact should agree on the nature, timing, extent, and form of the expert's deliverables—written and oral testimony.
What happens if the scope changes? The discovery process may bring to light facts and evidence that can cause the disputing parties to reconsider the opinions needed and the associated work the expert witness will perform. The parties and the expert should anticipate this eventuality and build in protocols to handle these events.
Cost Sharing
How will the expert be paid? To avoid bias and prejudice, in fact or appearance, most experts are paid jointly by the disputing parties, which share those costs evenly. However, it is possible that one or both of the opposing parties will request that the expert perform one-sided, special-purpose services. If the expert agrees to take on special requests, timekeeping records and billings will need to be prepared separately.
After the dispute is resolved, will the expert's fees and expenses shift? Depending on the judgment of the trier of fact, or an agreement of the disputing parties, the prevailing party may be entitled to be reimbursed by the losing party after the final outcome is determined. This possibility should be discussed prior to the conclusion of the dispute process.
Communication Protocol
What are the communication preferences of the parties? The expert witness will necessarily have to communicate with the parties and the trier of fact, and potentially with third parties. In some cases, ex parte contact is prohibited, and in other cases, it may be impractical and inconvenient for the expert to convene all parties together for every communication. Therefore, it is critical that the expert and parties agree on a communication protocol before starting any work.
If one-party communications are permitted, how do you protect impartiality? If not sufficiently considered and planned for, ex parte communications by a single disputing party with the expert could create the risk of bias. It is not difficult to imagine the adverse consequences if one of the disputing parties uses the majority of the expert's time and attention. For that reason, the parties, triers of fact, and expert must take care to mitigate this risk to acceptable levels.
Do both opposing parties need to be represented when the expert interviews? Experts may deem it appropriate to interview witnesses and knowledgeable parties in connection with their assignment. The disputing parties should carefully consider whether a representative should be in attendance for these interviews to protect confidentiality and available legal privilege.
Discovery and Expert Work Product
How will you handle discovery if the expert prepares opinions on each opposing party's positions? As discussed previously, it is possible that the parties will direct the expert to testify to two separate sets of opinions—one for each of the disputing parties. If that happens, the disputing parties should agree on discovery protocols for the opposing party opinions, including discovery of the opposing side's work product, draft expert reports, handwritten notes, and other evidence prepared by the expert.
Will both sides be able to discover and challenge expert work? If the expert is directed to prepare a single expert report (rather than two reports, one report for each opposing party), the disputing parties should be clear on limits of allowable discovery of the expert's work performed and work product. Areas to consider include requests for production and deposition. In particular, the parties should address opposing views on facts, evidence, legal theories, language, or results in the expert report and oral testimony.
Timing Considerations
How will shared decision making affect timing? In situations where the opposing parties share the decisions affecting the expert and where ex parte communications are prohibited, the expert's work can be slowed to a snail's pace. It is possible that the opposing parties will disagree and argue about every action and decision to be made, often appealing to the court or arbitrators for relief. The disputing parties should assess the risk of this situation ahead of time and design appropriate resolution mechanisms to keep the proceedings on track, on time, and on cost.
Does scheduling matter? If the expert's work stretches out over a time frame that is longer than expected, this may lead to an advantage for one side of the dispute. Accordingly, the parties should agree to a schedule that keeps the process moving and drives cooperation.
Expert Examination
- Will each of the disputing parties conduct direct and cross-examination of the expert? In order for the expert to fulfill responsibilities, it is important to avoid the creation of new issues to dispute as a result of the work and opinions of the expert. For this reason, the opposing parties should agree to the examination rules related to the expert. In cases where the expert issues a single, joint report on behalf of both parties, perhaps examination is limited to cross-examination. If the expert is to provide opinions separately based on each disputing party's preferred facts, evidence, and positions, the disputing parties should consider the pros and cons of performing both a direct and cross-examination.
Sharing Privileged Information
- How will potentially privileged information be protected if shared with the expert? It is common for parties in a dispute to share potentially privileged information, like case presentation strategy and legal theories, with an expert witness to strengthen the relevance of expert testimony. Each of the disputing parties should consider whether sharing potentially privileged information is prudent and necessary. If the parties decide not to share with the expert, they must consider alternative means to present all relevant evidence to the trier of fact. Ultimately, however, this may produce less impactful expert reporting and testimony to the detriment of a party's case.
The use of a jointly retained expert witness can be a cost-effective way to expedite the resolution of a dispute. However, it has risks that the parties need to consider carefully. Contracting, scope of work, cost sharing, communications, discovery, timing, examination, and the sharing of privileged information are just a few of the considerations the parties must evaluate before agreeing to use a jointly retained expert. Handled properly, these concerns can be turned to advantages to facilitate a speedy and efficient dispute resolution process.
Keywords: litigation, expert witnesses, jointly retained expert, neutral expert
Bradley J. Preber is national managing partner and Holly E. Daetwyler is managing director of Business Risk Services at Grant Thornton in Phoenix, Arizona.