Complex litigation often requires the perspectives and testimony of multiple experts. When managed successfully, an array of experts can provide insight on a range of issues to bolster the legal case, respond to opinions offered by opposing experts, and provide context to the fact finder. Ideally, multiple experts will be used in ways that leverage their specialized skills. An industry expert may provide important testimony on operational issues, but lack the range of tools or training necessary to quantify key relationships relevant to estimating damages or assessing liability. Meanwhile, an academic expert may be better suited to assessing these relationships through the use of theoretical and empirical methods, but may lack practical insights into the relevant industry. In such circumstances, the academic and industry perspectives can complement each other, strengthening the opinions offered.
We recently supported several industry and academic experts in a multifaceted high-stakes bankruptcy matter that involved a range of allegations across a diverse set of issues. This particular matter highlights three critical “best practice” approaches when managing multiple experts that, in our decades of consulting experience, have held true across numerous complex cases. First, plan ahead when considering multiple experts, including early recognition of potential expert roles that may be required in later stages of the litigation. Second, designate an expert coordinator or coordination team that can manage the process holistically, including defining expert roles; overseeing timelines; identifying any potential inconsistencies or tensions across the experts’ assignments, approaches, and conclusions; and avoiding unnecessary overlap. Third, develop a strategy for coordinating cross-reliance among experts, including managing the flow of information between experts and determining the extent to which experts should evaluate each other’s work.
In this article, we elaborate on each of these best practices, drawing on examples from our experience to highlight potential risks and to provide recommended approaches.
Plan Ahead When Considering Expert Roles
In the recent bankruptcy matter, the legal team recognized the need for a variety of experts early on, ranging from highly specialized industry experts to academics with research areas spanning from accounting to risk management. The case allegations required multiple experts to credibly opine on the wide range of topics relevant to the finder of fact. Moreover, it was particularly helpful for our client to proffer testimony from an expert with deep knowledge of a niche industry with very few players. Early planning and expert retention proved critical in this situation, as there were very few individuals with the requisite industry expertise from whom to choose.
Defining potential expert roles early in a case makes it easier to identify and retain the best experts. In our experience, the role of industry experts offering opinions on custom and practice in the relevant industry has become increasingly important. Such experts may also educate counsel and other experts on critical industry dynamics.
Thinking about potential expert roles early in a litigation also helps ensure that the right experts are considered for all phases of the matter (e.g., class certification, liability, damages). For example, during the class phase, the critical question may be whether proposed class members had common experiences with respect to information exposure or purchase options. At such a stage, a consumer behavior expert may be central to the case. Later, if the class is certified, industry experts who can speak to how prices are set or how discounts are secured may be more relevant. Considering these possible roles from the outset helps focus the search for testifying experts. Furthermore, allowing for a shift in experts over time to accompany a shift in legal strategy may also shield testifying experts from early stage discussions about aspects of case strategy that may ultimately be discarded.
By contrast, failing to secure the appropriate experts early on can lead to the retention of second-tier experts, or missing central arguments until the last minute. In such circumstances, a last-minute rush to locate an expert may result in missed opportunities to fully respond to arguments raised by opposing counsel or experts.
Designate an Effective Expert Coordination Team
In our bankruptcy-related matter, a core group of lawyers and nontestifying expert consultants worked closely to manage the expert process and report development. The coordinators maintained regular contact with each other and the testifying experts, keeping everyone appropriately apprised of new developments and progress, and ultimately helping to ensure that the testifying experts each submitted testimony that we viewed as highly defensible, thoughtful, and persuasive.
In our experience, it is important to designate at least one member of the legal and/or consulting team to coordinate the testifying experts. In large cases, a different lawyer might be responsible for each expert team, with another lawyer having overall responsibility for coordinating the various expert teams. If multiple testifying experts are being supported by one consulting team or within the same consulting firm, a consulting expert could be designated as a coordinator for those testifying experts. All designated coordinators should effectively and frequently communicate with each other and their respective expert teams to ensure that the experts are developing consistent approaches. Further, it is helpful if the expert coordinators are well-versed in the various expert topics, so that they are qualified to flag any potential overlap as well as any theoretical or methodological conflicts or potential tensions across expert reports. As each expert’s opinions evolve, frequent communication across expert teams, including about key assumptions and approaches, will help to increase the chances that potential areas of overlap or inconsistency will be noticed.
In the early stages of the litigation, the expert coordinators will likely be involved to some degree in identifying the right testifying experts and defining the expert assignments. In fact, as new arguments are developed or raised by opposing counsel and the experts, this team often plays a critical role in identifying additional experts, evidence, and arguments to bring forth. Furthermore, throughout the engagement, as the experts recognize their own needs for cross-expert reliance or inputs, the expert coordinators can ensure that the experts have access to appropriate metrics or industry facts, while maintaining expert autonomy. Similarly, the coordinator role is also critical in the rebuttal phase of a case, when it is important to determine whether an existing expert will be responsible for rebutting each opposing opinion, or whether certain arguments would be better addressed by a new expert.
As the case develops, the expert coordinators can also identify any potential tensions or inconsistencies across current and future expert assignments or preliminary opinions. This can be particularly critical because each expert typically works independently. For example, a coordinator might recognize that two experts are using different estimated weighted average cost of capital figures for the same company, or measuring company expenses in a materially different way. To identify these types of potential inconsistencies, expert coordinators should stay apprised of the important assumptions, calculations, and arguments underlying each expert’s work.
As report deadlines approach, expert coordinators should be working closely with expert teams to review drafts of the various reports, with a particular eye toward potential inconsistencies, contradictions, or areas of unnecessary overlap. Ideally, any overlap across reports is either intentional or, at the very least, recognized by the attorneys and the experts. Areas of overlap can lead to contradictions in expert reports that may expose vulnerabilities during cross-examination. For example, one expert may mention the relative benefits of using a comparable companies-based valuation approach, whereas the primary valuation expert is using a discounted cash flow approach. This overlap could open the door for opposing counsel to solicit testimony from the first expert in an attempt to undermine the primary valuation expert’s approach. If the first expert does not need to address valuation techniques, it is likely advisable that she or he avoid treading into that area.
Coordinate Cross-Reliance among Experts
A key issue that came up in our bankruptcy case was how best to handle cross-reliance among experts, where an opinion set forth by one expert was considered by another expert in forming her opinions. Managing cross-reliance is often a complicated undertaking, given the diversity of perspectives across testifying experts and the sequencing of report deadlines. For example, an industry expert offered opinions about industry custom and practice at a particular point in time. Another expert relied on the industry expert’s opinions in assessing whether certain behavior was reasonable given the relevant industry context and standard practice. In other circumstances, reliance was not necessary. Some experts in the bankruptcy matter simply acknowledged that they understood that another expert had reached a certain conclusion, and others noted that they had reviewed certain portions of the report of another expert and found those conclusions to be reasonable.
Indeed, in complex litigation matters with multiple experts, it is not unusual for experts to rely on other experts’ opinions and results as inputs into their own analyses. A key consideration is often when to share one expert’s results or report with another expert. While it may seem beneficial to share preliminary findings with an expert as she or he is forming opinions, sharing early drafts may lead to discovery concerns and expose the relying expert to questioning from opposing counsel about how the other expert’s results may have changed over time. In our experience, the most effective way to manage this tension as opinions evolve is to facilitate the flow of information between separate expert teams through the expert coordinators. Keeping in contact behind the scenes as the various reports and underlying arguments are developed helps to ensure consistency across reports and avoids scrambling to address last-minute surprises, while also shielding the testifying experts from these interactions. However, before filing her or his report, the relying expert will ideally view a final or near-final version of the other expert’s report, so that she or he ultimately is relying on the report itself rather than explanations of the report by counsel or consulting experts.
Another consideration is the extent to which a testifying expert needs to review and evaluate the work conducted by another expert that she or he is relying on. The most appropriate approach in addressing this issue will vary. We have seen instances where an expert is simply instructed by counsel to rely on inputs from another expert. In other instances, experts have gone as far as evaluating the report of the other expert and concluding it is reliable. While this could strengthen both opinions, the degree to which the relying expert “blesses” the opinions of the other expert depends on how comfortable the relying expert is with evaluating the work of the other expert, and whether she or he has the appropriate expertise to do so. A middle ground would involve discussions between the experts, so that the relying expert can ask questions about the underpinnings of the other expert’s opinions and any critical assumptions to gain a better understanding and level of comfort with the opinions being relied on. The path selected for expert coordination should carefully examine discovery implications. For example, will an expert be taking notes based on a call with another expert and will those notes be subject to discovery? Working closely with an expert coordinator and/or outside support team can help ensure coordination while minimizing discovery risks.
Careful coordination of a team of testifying experts will help realize the experts’ full potential in support of your case. For the best outcomes, we suggest planning ahead to define expert roles while remaining flexible as the case progresses, designating an effective expert coordination team to ensure consistency and limited overlap across experts, and being intentional and thoughtful about sharing information and cross-reliance among experts. Adhering to these best practices will strengthen your expert arguments. Without such coordination, you may risk offering opinions with gaps or limitations, and potentially even enable opposing counsel to use one expert to undermine another expert on your team.
Rebecca Kirk Fair is managing principal at Analysis Group in Boston, Massachusetts. Andrea Okie is vice president at Analysis Group in Denver, Colorado. Carletta Wong, and Laura Comstock are vice presidents at Analysis Group in Boston, Massachusetts.
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).