The word “complex” implies a web of issues that must be untangled. When it comes to complex litigation, the use of expert witnesses is one of the stickiest parts of the web. Before we focus specifically on issues involving expert witnesses, it is important to understand the nature of complex litigation.
Numerous rules in federal and state procedure attempt to define “complex litigation,” but most of the definitions seem to at best beg the question, give a circular answer, or give examples of cases that fall under the description, most with a wide variety of nonexclusive factors.
Regardless of the lack of a black-letter definition, complex litigation is a term of art in the legal arena. Among the more objective factors that indicate that a case involves complex litigation are the following:
But in keeping with the theme of ambiguity, even these factors do not define the number of parties, number of jurisdictions, the amount of damages, the number of experts, and the use of the term “complex.” One could draw a parallel between these factors and the non-exhaustive list of Daubert factors. Or perhaps it boils down to Justice Potter Stewart’s oft-cited definition of obscenity in Jacobellis v. Ohio (“I know it when I see it”).
Examples of the types of cases that are considered candidates for the complex litigation docket may be more instructive. The following are among them:
This list is not static or exclusive. In fact, events such as the current pandemic have added to the list. In the current climate, business interruption insurance has become the subject of complex litigation, primarily due to the unknowns associated with the unprecedented societal and economic issues in the business world and the vast number of entities involved. In these cases, expert witnesses may be needed to explain the effects of COVID on a specific industry, the nuances in a business interruption policy might cover or exclude losses, and even governmental authority in defining essential businesses that may remain open.
The fourth edition of the Manual for Complex Litigation (2004) is considered the bible of complex litigation practice and procedure. It mentions “expert” 940 times. The PDF version of the manual is 819 pages long. It references experts an average of more than once per page, an homage to their importance in the proper management of cases in complex litigation.
Judges and practitioners alike emphasize that effective case management includes the selection, vetting, and management of expert witnesses throughout the life of the case. Parties and issues can evolve and change—creating ongoing expert issues.
What is the role of expert witnesses in complex litigation? Transforming complicated issues into understandable points and conclusions. To again beg the question, complex litigation involves complex issues. Complexities in litigation are the purview of the expert witness. Most complex facts and issues require an explanation from expert witnesses to the judge or lay persons (or both) charged with deciding the case. Practically any case involving technology will require a translation that the uninitiated will be able to understand. The same applies to cases involving complex contracts, intellectual property, medical procedures, and other topics that generally require those involved in that profession to study for years before embarking on a career in the field. The types of cases listed above are always prime candidates for expert testimony.
Multiple experts are likely needed in complex litigation: Defining expert needs. Unlike a two-vehicle auto accident case that depends on the underlying issue of who was at fault, usually with the assistance of an accident reconstructionist, complex litigation may involve a myriad of separate issues, each of which may require a different expert witness to meet the Daubert standard (or Frye standard in some state courts) of specific expertise. For example, in an auto accident case involving a self-driving vehicle, a computer scientist may be required to describe the technology behind the ability of the vehicle to operate itself, but an automotive engineer may be required to explain how that design actually operates in traffic. Then a traffic engineer may be needed to explain how the traffic patterns in the area of the crash affected the vehicle’s failure in the accident. And a damages expert may be required to opine on the economic effect of injuries and property damage. Your initial challenge is to identify these key separate issues so that you can then retain the appropriate experts who will support your case.
Understanding the challenges (or, again, complexities) of complex litigation is the first step in the proper research, vetting, and engagement of expert witnesses. This is one of those situations in which, with attribution to Stephen Covey’s The 7 Habits of Highly Effective People, you should begin with the end in mind. You have to visualize the outcome you are seeking from your expert witness’s testimony as well as a plan for how you get there.
Unique conflicts of interest in complex litigation. Assembling a team of expert witnesses in complex litigation is fraught with the potential for conflicts of interest and ethical challenges. As previously noted, most cases in complex litigation do not involve one plaintiff against one defendant; more likely they involve large corporations with subsidiaries, possibly with several of them involved in numerous cases in litigation at any one time.
Ideally, any expert witness who is questioned about conflicts as a part of the vetting process will be able to correctly answer concerns about any possible conflict, but the expert can’t tell you what the expert doesn’t know. Many experts operate in a vacuum in their company or in a university setting, not knowing if others in their midst have created a potential conflict.
In addition, experts who work with large consulting companies that provide experts for a large number of cases each year fall through the gaps of a conflict check. Many of these companies use software to check for conflicts, but these can produce erroneous results even through no fault of the user or the technology. Companies change names, change employees, change executives, and even change product offerings. If search terms reflect historical data, as opposed to current information, the results can fall victim to GIGO—garbage in, garbage out.
Courts don’t have much tolerance for a conflict check that fails as a result of GIGO or for any other reason. Regardless of internal conflict-checking procedures, it is well worth the resources to have a firm that specializes in thorough vetting of expert witness backgrounds to add a second set of eyes to the process.
A checklist for conflicts analysis. To attain the best results, your conflict check should include
Privilege issues and challenges. A 2016 ABA article contains a good overview of the privilege pitfalls surrounding experts, often involving the role of the expert as a testifying witness or as a non-testifying consultant. Different levels of protection are afforded to each. The pitfalls are especially likely to occur in the context of complex litigation where non-testifying experts are routinely engaged to help attorneys understand the nuances of the case.
Under Federal Rule of Civil Procedure 26(b)(4)(D), “facts known or opinions held” by non-testifying experts are generally discoverable only upon a showing of “exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.” In a case involving numerous testifying and non-testifying experts, lines can become blurred as information is shared among experts and attorneys. Keep in mind that this protection is subject to waiver if the protected information is disclosed. Carefully define the roles of your experts, and handle privileged information carefully.
The venerable Arthur Miller compares expert witnesses in complex litigation to a dance marathon, the goal being to outlast everyone else during the discovery and motion phases. More specifically, they are dancing on the head of a pin.
Here are some practice pointers for the management of expert witnesses in complex litigation:
While we still haven’t defined complex litigation, perhaps these observations will be useful from the beginning to the end of the expert witness involvement in a complex litigation proceeding.
