Many attorneys learn the finer aspects of legal practice through hard-earned experience. Some experiences can be good. Others, not so much. In How to Train Your Expert: Making Your Client’s Case, Janet S. Kole shares her lived experience in the use of experts at all stages of litigation, from evaluating claims through defending cases at trial. The result is a concise guide that answers questions that newer litigators may be afraid—or worse, do not know enough—to ask.
The book runs 132 pages and is split into 11 easily digestible chapters, written in an engaging, conversational tone. Most chapters contain anecdotes, both humorous and horrifying, of how the subject matter has actually played out in practice. Each chapter includes supplemental reading and suggestions related to its devoted topic, including, for example, the impact of different venues on whether attorney-expert communications are privileged.
The purpose of this book is to explain, in straightforward language, the “what,” “why,” and “how” of retaining and using experts. Kole assumes that the reader is inexperienced, but not unintelligent, and provides guidance at each step of the process. Additionally, she provides helpful references to additional outside resources for more detailed explanations of points that can only be touched on briefly in a book of this scope.
Chapter 1 deals with whether an expert is necessary or even helpful to one’s case. Kole points to rules of civil procedure that might demand or require an expert in, for example, a medical malpractice case. But necessity aside, the focus here is on whether an expert will be helpful in explaining complex topics that an ordinary juror or judge may not understand.
Chapter 2 focuses on a topic that many litigators find difficult: how to find a credible expert. The credible expert is more important than any expert, explains Kole. She emphasizes the need for attorneys to become knowledgeable about the particular field in which the expert is expected to testify, so as to ensure that the expert will not be subject to devastating cross-examination based on prior testimony or publications. Kole also recognizes that lawyers cannot become experts in every field and provides guidance on how to strike a balance.
Chapter 3 deals with the use of consulting experts, and whether they are necessary. Kole discusses at length the benefits and perils of using consulting experts and describes the pitfalls that can occur as a result of the sharing with co-parties’ experts who may, for example, also be fact witnesses to a particular case. The advice provided in this chapter can be of great benefit to an attorney who is inexperienced with multi-party litigation and unaware of the potential hazards of sharing experts with other parties.
Chapter 4 highlights another pitfall, in the form of privilege between an attorney and an expert, and what is, and is not, covered. Like other chapters throughout the book, this section provides notice of the issues that may arise, with reference to outside resources to aid in further understanding.
Chapters 5 and 6 deal with the nuts and bolts of preparing the expert report, from the facts and materials on which the expert relies to the generation and production of a final report. Kole tosses in a reference to a canonical legal film, My Cousin Vinny, to both entertain and explain the thought process that should go into the report and the expert’s eventual testimony.
Chapter 7, aptly titled “Ethical Issues,” identifies the risky conduct that lawyers should avoid in dealing with experts. This ranges from instructing an expert how to opine to ghost-writing a report (spoiler: don’t do it). The title of this chapter is somewhat self-explanatory, but it is nevertheless a crucial inclusion directed toward the potentially over-ambitious newer attorney.
Chapters 8 and 9 address preparing an expert for testimony, interacting with other counsel, and relating to a jury. In no uncertain terms, Kole explains how an aloof expert can tank a case. These chapters are extraordinarily helpful in describing how even experienced attorneys can better manage the relationship between counsel and expert.
Chapter 10 relates to whether an expert can opine as to an ultimate issue at trial, which, as Kole relates, can depend on the jurisdiction and the prevailing law. She also discusses “ultimate issue” for those newer litigators who are nevertheless too far removed from law school to recall what it means.
Finally, Chapter 11 relates to the standard for determining whether an expert opinion is admissible. This is, of course, critical to ensuring that the effort expended in finding and retaining an expert does not go to waste, not to mention the countless hours and potentially significant costs that are invested in generating the report and eliciting testimony helpful to one’s case.
Kole freely offers her expertise throughout this engaging work, providing a helpful framework for young attorneys to quickly become expert at using experts. How to Train Your Expert is an excellent resource. If it does not answer every expert witness–related question, it at least makes sure that one is equipped with the correct ones to ask.
