April 18, 2016 Practice Points

9 Tips for Improving the Working Relationship Between the Attorney and Expert Witness

By Angela A. Meyer, Marta L. Villarraga, and Susan V. Vargas

As the helpmate to the attorney of record in litigation, an expert provides valuable advice, technical insight, and support. However, we have seen that miscommunication and misunderstandings may diminish or hurt the relationship between the two. The following are nine helpful hints to improve the working relationship between counsel and the expert witness.

1. Engage your expert early in the process. Understanding the potential technical challenges early in the discovery phase can provide more clarity as to where the case might go. Last minute retentions might limit the ability to conduct any technical analyses that require use of specialized equipment or techniques that cannot be accelerated.

2. Get on the same page regarding scope of assignment at the outset. If the technical questions are not well defined at the outset, identify and agree together on what needs to be done to arrive at next steps of the analysis. Will this assignment only involve document review? Will there be an inspection? Will there be any testing?

3. Understand how the expert coordinates his calendar for scheduling conference calls, in-person meetings, inspections, depositions, etc. Is the expert the only person who can commit to a date? Is the assistant in sole control of the expert's calendar? Confusion about an expert's availability causes frustration for both the expert and attorney.

4. Review the scheduling order and the specific deadlines that will impact the expert. Discuss interim internal deadlines that you would like to set for review of documentation, discussion of preliminary opinions, declaration review and/or review of report, as applicable.

5. Discuss communication style that works for the project—do you want a phone call after every milestone? Prefer email? Should any of the expert's staff members be copied on emails?

6. Communicate as to the extent of involvement of support staff the expert will utilize. This can have an impact on the cost and ability to have intermittent progress updates. Identify who that support staff will be and what role they will play in the technical analysis work.

7. Discuss a preliminary budget up front—makes for less surprises later.

  • Does this include a written or oral report?
  • Does this cover deposition preparation and deposition?
  • Does this cover trial preparation and trial testimony?

8. Have a discussion regarding documents that you anticipate the expert will need to review—if you send hundreds or thousands of documents, the expert will assume you want him/her to review everything.

  • If the attorney wants the expert to review everything that has been produced, be clear on that, and develop an understanding about the organizational structure of the documents in order to better assess the effort it will take to identify and review key documents.
  • If the attorney only wants to provide a subset of what has been produced, the expert and attorney should discuss and agree upon what specific documents the expert will need for the analysis.
  • If there is a large production, consider whether it will be more efficient to use a document management package. In this era of digital documentation, having the ability to organize documents by theme and having them all searchable can translate into greater efficiency and cost control.

9. Review invoices and expenses as they are released and before they are submitted to the client for payment. If information is missing from the invoice that demonstrates the value added by the expert, contact the expert to have the invoice revised so that the client is much less likely to reject it, in part or in full, when submitted for payment.

These 9 tips will keep the project on-track, the relationship sound, and minimize surprises for the in-house and outside counsel.

Angela A. Meyer, PhD, PE and Marta L. Villarraga, PhD, RAC, are with Exponent, Inc., in Menlo Park, California, and Philadelphia, Pennsylvania, respectively. Susan V. Vargas, Esq., King & is with Spalding LLP in Los Angeles, California.

Copyright © 2016, 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).