Litigators generally recognize that a good expert can advance a client’s case in myriad ways—timely advice on discovery regarding key technical issues, well-supported written opinions that forestall likely avenues of Daubert challenges, and credible presentation of complex issues to a jury, to name just a few. And litigators generally recognize the converse—a bad expert can do real harm by means that are even more varied—wastes of time on irrelevant issues, missed deadlines and attendant workflow bottlenecks, sloppy draft opinions requiring extensive supplemental revisions, damaging concessions at deposition, wooden or opaque trial testimony.
Less universal is the acknowledgement that, sometimes, the difference between a good expert and a bad expert can be found in how they are managed. Below are a handful of practice tips for maximizing the odds for a productive expert engagement.
Careful management can’t overcome a lack of relevant expertise. It is best to avoid having the deciding factor in the expert retention decision be an impending deadline, rather than the best available match between expert qualifications and the engagement. Budget ample time to find the right expert well in advance of any report and disclosure deadline. For issues where subject matter experts are plentiful, check with your colleagues for recommendations or comb filings from similar cases to identify candidates. If dealing with more idiosyncratic topics, look to authors and editors of leading academic textbooks or industry publications, or consider employing a search firm. In either case, adequate lead time is a necessity to adequately evaluate the universe of potential candidates.
Experts are not immune to thinking that they can lawyer at least as well as the lawyers themselves. Be clear from the outset as to the issues requiring an expert opinion, the evidence likely to be reasonably available, and any assumptions to be supplied by counsel. To the extent that there’s disagreement over the scope of the assignment or the work necessary to produce a well-supported opinion on the relevant issues, have that discussion as early as possible. Don’t wait until you receive a draft report to discover that your expert thinks you need to subpoena an army of third parties or believes that one of the report’s fundamental assumptions is unreasonable.
You do your expert (and your client) no favors by soft-pedalling criticism of weaknesses in their opinions. Holes in your expert’s report will come out at deposition if you’re fortunate—or at trial if you’re not. Well in advance of the final report, think critically about your expert’s premises and conclusions. Raise your concerns directly and plainly with the expert herself. Push back on hand-waving until there’s a persuasive explanation, or at least a frank acknowledgement of any necessary inferential leaps. Even if there is no way to short-circuit the anticipated attack, early due diligence ensures that your expert is prepared to defend their theory to the fullest extent possible.
Your case is unlikely to be your expert’s sole, or even highest, priority. Other expert engagements, professional obligations, and personal commitments will carve chunks out of your expert’s schedule—and a competing commitment days before the report deadline, deposition, or trial can leave you stuck with an expert that is overtired, underprepared, or resentful toward you—perhaps even all three at once. Avoid this by staying on top of your expert’s schedule. Flag case deadlines with the expert well in advance (notifying them promptly of any scheduling amendments), and get written confirmation that she has blocked out sufficient time for your case.
