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September 28, 2016 Practice Points

Effectively Handling Experts

Counsel should tread lightly when communicating about the case with the expert.

By Alexander I. Passo

In nearly all accounting and legal-malpractice actions, the retention of an expert is necessary. Consequently, counsel should begin their search for a potential expert nearly at the outset in these types of cases. However, before retaining an expert, it is critical to perform adequate due diligence on the potential expert’s credentials and testimonial history. After retention, counsel should tread lightly when communicating about the case with the expert. Otherwise, these communications can potentially be discovered by opposing counsel and used to attack the credibility of the expert’s opinion.

  • Vetting: Before disclosing any information to the expert, a conflict check should be performed. After clearance, ask the expert whether he or she has ever been disqualified in a matter either by conflict or by Daubert challenge. Obtain the expert’s CV and inquire about the result of each matter that the expert was retained in as an expert and provided testimony. Avoid retaining an expert whose past retention in matters indicates a bias. Review the articles the expert has authored in the past to determine whether any of them run contrary to the position in your matter. When interviewing the expert, evaluate whether he or she communicates well and is persuasive.
  • File Review: After retaining the expert, send the expert the entire case file (excluding attorney-client information and work product). If you provide the expert an incomplete file to review for the purpose of rendering an opinion, you risk a cross-examination focused on an incomplete review by the expert of all the facts while the expert was rendering its opinion.
  • Neutral Written Communications: Refrain from drafting any emails or letters in which you make conclusory statements about the legal issues or facts in the case. These communications in some jurisdictions are discoverable. By using neutral language, you will eliminate the risk that your conclusions compromised the expert’s independent judgment. Moreover, it eliminates the possibility of violating your state analog of Model Rule of Professional Conduct 3.4(b), which prohibits attorneys from counseling or assisting a witness to testify falsely.
  • Protect Draft Reports: The Federal Rules of Civil Procedure currently shield draft expert reports from discovery by characterizing the drafts as work product. However, there are three exceptions, which are: (1) compensation of the expert; (2) facts or data that the attorney provided the expert and from which the expert considered when forming its opinion; or (3) assumptions the attorney provided the expert from which the expert relied upon when forming its opinion. Fed. R. Civ. Pro. 26(b)(4)(B)–(C). Tread lightly when communicating with experts in relation to their draft reports, and refrain from assisting your expert in editing. If you extensively assist in the drafting of the report, you risk your communications with the expert being discoverable. See Gerke v. Travelers Cas. Ins. Co., 289 F.R.D. 316 (D. Org. 2013) (“Communications between a lawyer and the lawyer’s testifying expert are subject to discovery when the record reveals the lawyer may have commandeered the expert’s function or used the expert as a conduit for his or her own theories.”); see also, U.S. ex rel. Wall v. Vista Hospice Care, No. 3:07-cv-604-M, 2016 U.S. Dist. LEXIS 99480 (N.D. Tex. Mar. 22, 2016) (Ordering production of any portions of draft expert reports authored by counsel); Bingham v. Baycare Health Sys., No. 8:14-cv-73-T-23JSS, 2016 U.S. Dist. LEXIS 127933 (M.D. Fla. Sept. 20, 2016). Gerke technicallypredates the amendment of Rule 26 that shields expert drafts from discovery, and since then, courts have declined to follow its holding. See U.S. CFTC v. Newell, 301 F.R.D. 348 (N.D. Ill. 2014). Nevertheless, the law on this issue is unclear and it would be prudent to avoid assisting experts in drafting their reports.

Keywords: professional services liability litigation, experts, discovery, work product privilege

Alexander I. Passo is with Patterson Law Firm, LLC in Chicago, Illinois.

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).