August 23, 2017

What advice would you give a young lawyer who is preparing to work with experts for the first time?

Jennifer Beaudoin, Jane Ann Riley, Allison Jacobsen, Erin Gaskin, and Peggy Smith Bush - August 17, 2017

Jennifer Beaudoin, Director of Forensic Services, PricewaterhouseCoopers Advisory Services, LLC in Boston, Massachusetts
Working with experts for the first time can be daunting. Here are some tips to consider as your case progresses from its initial phases through trial:

Expert Selection. Cases can be won or lost based on expert witness input and performance, so selecting the right expert is a critical step in any case. Select an expert with whom you can develop a rapport. You must be able to trust and have confidence in your expert’s skill set and calculations.

Early Involvement. Involve your expert early on. Meet with the expert as soon as possible to discuss the case theory, evaluate discovery status, and determine what the expert needs from discovery. Use this early time with your expert to understand financial aspects and damage theories in order to build the best damages approach given the facts of the case.

Depositions. Devote adequate time and thought to depositions. Leverage your expert to help you identify and understand weaknesses in the opposing damage claim and how you can attack those weaknesses. To the extent you are able, have someone with an accounting/finance background present at the opposing expert’s deposition to help you probe and expose the weaknesses. Time preparing with your expert is time well spent; good preparation will allow you to avoid harmful missteps and maximize benefits from the opponent’s deposition.

Trial. For trial preparation, draft the direct testimony as a script of Q&A’s that you and your expert will practice. This ensures your expert knows exactly what you will ask and you know exactly how your expert will answer. Review your expert’s deposition transcript and discuss anticipated cross-examination questions to understand potential areas of attack and how to respond. This will also help you build a plan to address any areas of concern on redirect. Keep in mind that an expert can be an invaluable asset who makes you look good as long as that expert can communicate information in a way that can be commonly understood. Finally, use your expert to help you identify the best areas for cross examination of the opposing expert and the best way to frame those topics.

Jane Ann Riley, Attorney in South Pasadena, California
For the young lawyer who is seeking authority to retain an expert from a third party that is funding the litigation, such as an insurance carrier, I offer the following advice regarding what information to include in a request for an expert:

Define what you intend to prove through expert testimony to show that the expert opinion is necessary to your case. For example, if you want to show that a plaintiff contributed to her own accident by carelessly using the stairs, you probably do not need an expert; but if you want to prove that the plans for a building are defective, you would need to offer the expert opinion of an architect.

Consider your client’s role and exposure in the litigation. Third-party funders often will consider exposure in their risk analysis. Generally, the bigger a role the party played in the events underlying the litigation, the more likely a funder will be willing to spend money on experts. So, if you are representing a fairly “minor player” but think you need to retain an expert, you may need to address this in your request.

Look for an expert who is suitable for the purpose for which he or she is being retained. Do you intend to put on your expert as a witness at a jury trial, a bench trial, or maybe an arbitration proceeding? Maybe you want the expert to assist you in settling a case by making a presentation or preparing a report for the third-party funder? The personality of an expert and how he or she presents are key factors to success in using experts, and choosing an appropriate expert will make it easier to convince the third-party funder that the expert is worth the investment. Obviously, you want someone who has a good reputation in his or her field, is credible and knowledgeable, and will present well.

Demonstrate how the expert is qualified to opine on the issues you expect the opinion to cover. Obtain the expert’s CV and fee schedule; you will need to provide these to the funder. Do some checking of the expert’s background qualifications if you are unfamiliar with him or her. For example, if a professional license is part of the expert’s qualifications, check the relevant professional websites to ensure that the expert actually has the license and that it has not been suspended or revoked.

Obtain a proposed budget from the expert and work with the expert to ensure that it is sufficient for the expert to carry out the work, but justifiable to the third-party funder. If the third-party funder has guidelines for retention of experts, make sure that you are familiar with them and that your request so conforms, especially as to the budget. An expert’s opinion is only as good as its foundation, so it is of utmost importance that you obtain adequate authority from the third-party funder to allow your expert to do the work necessary to form the bases of his/her opinions.

Allison Jacobsen, Associate, Hunton & Williams in Dallas, Texas
My best advice for young lawyers regarding expert work is to carefully define the expert’s role and the scope of testimony, and to keep the ultimate audience in mind.

First, when choosing an expert, you should strongly consider how you expect to use the expert’s testimony. Will the expert be used solely as a consultant? If so, then you need to consider the importance of keeping his or her advice strictly confidential. Otherwise, if a testifying expert reviews or relies on the consulting expert, the expert’s opinion may become discoverable. When drafting an engagement letter for an expert, keep in mind that the expert’s fees and scope of engagement will be open to discovery.

If you are going to ask the expert to opine and provide testimony on a topic to help prove or defend your case, you should carefully define the scope of the testimony so that it is within the expert’s background and expertise. All too often, experts are stretched beyond their expertise or into an area of testimony in which they have provided contrary opinions in articles or prior testimony. Delimiting the scope of the expert’s testimony early will help avoid this pitfall and also can help to combat disqualification/Daubert motions and potential impeachment. Making these decisions early can also help with efficiency and budgeting: you will know what documents your expert needs to review and will be able to reach a realistic time and expense rubric.

Finally, if you plan to ask an expert to testify at trial, keep your audience in mind. An expert may be more persuasive in a bench trial, but not in jury trial, or vice versa. The expert may be more likeable or relatable to a certain audience or even in a specific venue or jurisdiction. Consideration of these factors up front will likely help you avoid frustration as the case develops.

Erin Gaskin, Shareholder, Fowler White Burnett in Miami, Florida
Here are some questions that young attorneys should ask themselves and their experts:

  1. Is the expert the correct specialist to render opinions about the issues in question? Does the expert possess the appropriate education, experience, credentials, licenses, and certifications to opine relative to the subject matter at issue?
  2. Has the expert testified for the opposition in other cases? If so, will that testimony disqualify the expert or take away from the expert’s credibility in your case? Past testimony can be an effective cross-examination tool.
  3. How does the expert present? What impression do they make in terms of appearance, candor, expressions, attitude, honesty, and impartiality? Bias, attitude, and a proclivity for equivocation can be unfortunately obvious when experts take the stand.
  4. Has the expert published on the subject at hand? If so, do these publications contain information or conclusions that conflict with and/or rebut the opinions offered in your case? Learn about these publications up front and review them carefully. Publications can support or detract from the witness’s credibility and their import should therefore be determined early in the process.

Peggy Smith Bush, Managing Partner and Shareholder, Southern Trial Counsel PLC in Orlando, Florida
Respect the expert’s experience but do not be intimidated. You do not have to become an expert in the field to work with a consultant or expert witness. With that said, you should at least make an effort to have a basic understanding of what the expert does and you should know where this expert fits in the overall case strategy before you send materials and begin working with your witness.

Always be sensitive to your deadlines. Having a top-shelf expert is of little help if you blow the disclosure deadline for either identifying or providing expert opinions.

Keep in mind that cross-examining expert witnesses can be long and hard and requires keen attention to detail. Looking ahead to try to avoid surprises during a deposition, other discovery, and certainly at trial can make or break your case. Do not assume anything. Rather, ask questions so that you know your expert’s background, strengths, weaknesses, and opinions better than the other side.

Selecting consultants and testifying expert witnesses is important and can be an expensive investment in your case. To maximize effect and efficiency, do not forget to use available resources to avoid reinventing the wheel. As you begin the process, consider seeking input from more senior attorneys, trusted colleagues, and organizations to which you or your firm belongs. In some instances your client may have valuable input as well.

Finally, keep the supervising attorney in the loop at each stage so that your team is always on the same page. This will make the entire process much less stressful and increase your chances of a smooth and productive expert witness experience.

Much of this applies to preparing for opposing experts as well: know something about the area of expertise and why this expert is on opposing counsel’s witness list, consider written expert discovery to help prepare for deposition and trial, consider your resources, and keep your team in the loop.

Good luck!

 

Authors: Jennifer BeaudoinJane Ann RileyAllison JacobsenErin GaskinPeggy Smith Bush

Jennifer Beaudoin, Jane Ann Riley, Allison Jacobsen, Erin Gaskin, and Peggy Smith Bush - August 17, 2017