February 06, 2017 Practice Points

Rethinking the Timing of Expert Retention

By Jordan Tabak

Representation of individual and institutional clients in the product liability sphere almost always requires understanding of complex products, reconstruction of the interaction between a user and the product, and the evaluation of the corresponding damages a user attributes to the product. Accordingly, we consistently turn to experts to assist in the defense or prosecution of our cases. When we do so varies, however.

Early expert or consultant retention can be of tremendous benefit to our clients and may greatly assist in early case handling, including factual discovery. Of course, later designation can often lead to a last minute scramble to retain experts who are available on the assigned trial date. This is often a byproduct of state civil procedure rules. In California, for example, parties demand experts 70 days before trial and designate 20 days later. (California Code of Civ. Proc., § 2034.260 et seq., § 2034.280 et seq.) In New York, parties need only give "appropriate notice" of designated experts before commencement of trial. (CPLR § 3101(d)(1)(i).) Beyond scheduling issues, however, delaying the selection and retention of experts deprives lawyers of the opportunity to put that expert's knowledge to work during the factual stage of discovery.

Consider a case involving a vehicle owner or operator where that person alleges that an accident or injuries resulted from a defective automobile component. A traditional model of case handling dictates we propound and complete written discovery, then take depositions, then, depending on the outcome of factual discovery, retain experts.

Yet on the defense side, we often deal with sophisticated attorneys who file complaints that are sufficiently detailed to enable us to immediately identify the type of liability and damages experts necessary to defend the case. Engaging those individuals early on can guide and limit extraneous written discovery, the response to which the expert may need to inform his opinion. Early engagement is also particularly helpful prior to depositions. Experts can offer guidance on questions to pose to owners or operators concerning vehicle-related sounds, feedback, and other measures of performance. The responses will assist an expert in evaluating evaluate whether a vehicle was affected by the defect in the manner alleged.

This practice is equally applicable to discover information concerning damages. Medical experts can help furnish questions designed to objectively evaluate whether a party is suffering from a claimed injury. While some of this information may be obtained from written medical histories, as well as during an examination of the party, the deposition permits a persistent method of questioning that may not otherwise be available, and is therefore an ideal tool (particularly when videotaped) to expose or learn about a party's claimed damages.

Some attorneys are reluctant to engage experts in factual discovery due to the discoverability of expert files and the possible revelation at deposition of that expert's involvement. To this I say: "so what?" The questioning and assistance experts furnish at the early stage of litigation is invaluable and designed to complete the foundation for that expert's opinion. It doesn't detract from it.

In sum, and as simple as it sounds (and is), retain and use your experts early. It will help avoid scheduling conflicts, inform and assist in factual discovery, and enable you to complete discovery in a timely manner.

Jordan Tabak is senior counsel at Bowman and Brooke LLP in Los Angeles, California.


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