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Best Practices for Working with Expert Witnesses

Katherine Unger Davis and Caroline Norma Jean Power

Summary

  • Expert witnesses are crucial in product liability cases, but developing them can be costly and time-consuming, making early preparation essential.
  • Establishing clear expert needs and strategies early on is important, including choosing the right type of expert and considering jurisdictional challenges.
  • Effective expert management involves setting expectations, maintaining momentum, ensuring confidentiality, and rigorously testing their performance through mock exams.
  • Maintaining long-term relationships with expert witnesses ensures they stay engaged and prepared throughout lengthy litigation processes.
Best Practices for Working with Expert Witnesses
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Expert witnesses can make or break a case. This is particularly true in products liability cases, where expertise is often required to support or defend against key elements of a claim, such as causation or the presence of a design defect. But getting an expert from initial interview to a complete report and onto the stand at trial may have its challenges, to say the least. Expert development can be an expensive and time-consuming endeavor, and the results cannot be guaranteed. As deadline driven as attorneys can be, expert witnesses are one area in which working ahead and addressing needs early is not only beneficial; it is crucial. Informed by litigation trends in products liability, recent cautionary tales, and the recently updated Federal Rules of Evidence, this article will help you map your expert development plan, stay on track, and avoid common pitfalls. 

1. Establish Your Needs for an Expert and Strategies

To ensure your expert witness development is as efficient and effective as possible, begin by establishing a clear strategy based on what you need from an expert witness and what kind of expert witness would be able to meet those needs. When identifying your expert needs, start with the elements of the case that require an expert witness under the law, including establishing or disputing damages. Next, consider whether an expert could be useful as an advocacy tool, to provide context to the case or to make complicated facts more accessible to the judge and jury. For cases involving highly technical issues, consider whether early engagement of a consulting expert would assist the lawyers in case development.

Products liability cases pose a unique expert planning challenge because new cases about the same product often arise in various jurisdictions with competing schedules over the course of litigation. If the litigation is likely to grow, evaluate the likely jurisdictions for future filings. State courts with well-regarded mass tort coordination programs and states that allow for preference settings of early trials are the most common targets. Of course, locations where personal jurisdiction is easily established over a defendant are also likely jurisdictions. Keeping in mind the size of the litigation, the jurisdictions of anticipated cases, and the importance of the expert testimony, determine whether multiple experts on the same topic are warranted. A roster of experts may be useful to preserve options for trial, to deploy to various jurisdictions, to cover competing case schedules, or to prevent any one expert from appearing as a “professional witness.”

With a clear sense of the expert needs in a case, it will be easier to identify the kinds of experts who can most effectively meet those needs. A witness with highly specialized expertise may be hard-hitting on a targeted issue, while a generalist may provide more flexibility or a broader scope of coverage. A local witness may be better suited to connect with a jury, while a national leader in a given field may sway a judge or arbitrator.

Keep in mind that your expert strategy will likely change as the case develops, so be ready to maintain flexibility and consider beginning with a broad expert scope. It is better to call in an expert who was identified and contacted early on, rather than scramble for an expert late in discovery after the case theory has shifted.

2. Lay the Groundwork for Success Early in the Relationship

As you apply a carefully crafted expert strategy to identify appropriate experts and establish expert relationships, it is important to set and maintain expectations from the outset. It is crucial that attorneys be up front with experts about (1) the scope of the opinions and the amount of work required to prepare those opinions; (2) the anticipated timeline for reports, deposition, and trial; and (3) the anticipated fees and expenses. When setting expectations on timing, be sure to set internal deadlines, in addition to case deadlines, even if your internal deadlines are flexible or aspirational. Confirm how the expert applies fees, whether different rates apply to different activities (e.g., drafting a report or attending deposition), and how expenses will be handled. Be sure to communicate any requirements for or restrictions on invoicing and processing payments before the first invoice is submitted. Early and frank discussions of each of these elements will help both the expert and the attorneys determine whether the expert fits and will be able to meet the needs of the case.

3. Maintain Momentum and Confidentiality

Once experts are retained and it is time to dive into the substance, there are two elements to keep in mind: first, maintaining momentum toward a comprehensive and timely expert report or disclosure; second, maintaining appropriate confidentiality of communications, draft reports, and financial information.

To ensure that an expert stays on track with report deadlines, encourage the expert to put pen to paper early in the process. Set early internal deadlines for drafts of certain sections of the report, rather than waiting for a complete report later in the process. Avoid saving the most difficult sections for last; be sure to prioritize the most crucial opinions that may require time to prepare. Establish regular meetings with the expert during the thick of the drafting process to ensure the expert does not become bogged down or distracted and that the expert clearly and persuasively communicates his or her expert judgment and opinion.

Confidentiality is particularly important in products liability litigations that may span multiple jurisdictions with contrasting expert confidentiality rules. The most prudent approach is to function under the most restrictive rules applicable to a case—or rules that may become applicable if and when litigation spreads to other jurisdictions. Where multiple jurisdictions are at play, explore whether opposing counsel would agree to a stipulation about the confidentiality of expert materials across jurisdictions. Confirm whether your jurisdictions’ rules protect attorney-expert communications, draft reports, and expert invoices. Many experts may prefer to refrain from taking notes outside the draft report or sharing substantive thoughts via email so that their expert opinion is properly memorialized in one place when it is complete and any necessary context may be provided.

4. Test the Expert Early and Often

A common and devastating pitfall in expert development is delay. It is tempting to allow expert witnesses extensive time to digest case materials and formulate their thoughts, but a late-submitted draft report may not live up to expectations, an expert may not articulate his or her opinions well when testifying, or an expert may falter under cross-examination. As with all elements of expert work, it is better to confront these possibilities early, with time to address the issues.

While it is tempting to put off mock examination until after the report is disclosed and depositions are looming, questioning the expert early in the process can be extremely useful in gauging the expert’s skill, mastery of the substance, and how the expert frames his or her opinions. Keeping in mind the core expert witness strategy and what is needed from a witness at trial, schedule firm dates for mock examination weeks or months before expert disclosures are due. Invite attorneys whom the expert has not met before to observe and question the witness. Remember that any materials shown to the expert may be subject to disclosure on the materials considered list, so be strategic in how questioning is structured. Test the expert’s performance under both direct and cross-examination. Questioning is an invaluable tool for identifying weak spots in an expert’s performance or opinions, which, if detected early, can be strengthened before disclosure.

As the draft report is nearing completion, pressure-test the writing with the same level of scrutiny as would apply to questioning. Ensure the report contains language that reflects the expert’s methodology and materials considered, tailored to the language of the applicable standard. For instance, reports in Frye jurisdictions should comment on whether the expert’s methodologies and opinions are generally accepted, while reports in Daubert jurisdictions should instead speak to the reliability of the methodology employed. Keep in mind that Federal Rule of Evidence 702 was recently updated to require a determination of whether the “expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.” While your expert should be aware of the applicable standard, your expert should avoid language that appears over-lawyered. A federal court recently excluded experts whose reports contained nearly verbatim passages, parallel structures, and Bluebook-style citations, because the court found it “cannot conclude that the reports represent the experts’ opinions rather than counsel’s.” Holley v. Gilead Scis., Inc., No. 18-cv-06972 (N.D. Cal. Mar. 9, 2023), ECF No. 1198). Finally, consider whether the expert’s report is consistent with trial themes on both affirmative and defensive topics.

5. Maintain the Relationship

Expert witness development is not a discrete task, and attorneys should take care to appropriately manage expert relationships throughout the litigation and beyond. After the report is disclosed and the deposition is complete, an expert witness may be out of the limelight for months before trial as attorneys work through motions practice. An expert may not be called for an early trial but could be needed at a later trial. While products liability practitioners are accustomed to the years-long litigation, long stretches of inactivity may cause an expert witness to lose sight of the litigation, grow rusty on the substance, or take on competing work. To keep experts engaged, set reminders to check in with witnesses, provide periodic updates on the status of the litigation, and stay abreast of what experts are doing outside of litigation, including any projects that may create a conflict of interest or an appearance of conflict. Particularly where an expert’s subject matter is applicable to various litigations, expert witness relationships can be career-long relationships if appropriately maintained.

Conclusion

If you are tasked with working up an expert, fear not! Expert development is some of the most interesting and impactful litigation work. With the best practices outlined here, you will be well equipped to keep your expert development on track. 

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