Selecting any expert witness requires an attorney to understand the issues at bar, as well as the opinions of experts that will be required to provide clarity to the judge or jury. Litigation varies widely from case to case. The attorney’s challenge in putting together expert testimony to clearly define the facts and relevant conclusions of the case covers a tremendous range of issues. Considerations that go into selecting and managing the most appropriate experts can be one of the most critical aspects of case strategy and trial preparation.
The nuanced assessment of issues provided by experts is something that is often given short shrift in the early stages of case evaluation or litigation preparation. In managing complex litigation issues, there are often subtle factors that are not readily apparent upon which the outcome of the case can turn. In complex cases it can be tremendously valuable to have a generalist expert who is familiar with all the disparate aspects of the subject of the litigation. The expert can assist the attorney in coordinating the selection and management of the expert witness team. Unfortunately, not all cases have sufficient damages to justify a comprehensive expert team, but when the litigation and client can support the cost there is no better way to help ensure an outcome that reflects all available strategic approaches. Numerous case studies illustrate how valuable the early and expanded involvement by an expert can be to a case.
While it is always appropriate for an expert to adopt a dispassionate professional posture, and certainly acceptable to simply answer the questions the expert’s retaining counsel asks, there is much more value that a well-managed expert can provide. Thoughtful and engaged expert witnesses regularly struggle with the desire to offer their hiring attorneys ideas or information that go beyond the scope of the matters on which they were asked to opine. Specialized dimensions of experience and unique perspectives can often allow an expert witness to provide additional levels of understanding to the complex and multi-dimensional issues of a case. While the role of an expert witness is to advocate for his or her expert opinion – rather than advocating for a specific outcome of the litigation – the value of experts to their retaining attorneys is enhanced when they are brought in early enough to provide information that helps support or show the strengths or weaknesses in their case.
Responsibilities of the experts
The expert’s raison d’être is to assist the trier of fact in understanding aspects of the evidence that may require specialized skill or knowledge. This will hopefully help them grasp the various dimensions and finesses of technical elements or standards of practice that might not immediately be apparent. But litigation is generally based on conflicting interpretation of facts, and experts are frequently the best way for attorneys to investigate, identify, interpret, validate or determine the relevance of various facts at issue.
All experts should understand the concern many lawyers have over accepting an expanded scope of expert review, analysis or testimony. Some attorneys don’t want to risk further complicating the issues; some fear that the expert may tread into areas that could compromise the case; some fear that doors may be opened to a line of inquiry that could jeopardize their position, and some just don’t want to incur the extra fees. But there is tremendous value in experts who diligently think outside the box and raise the possibility of lines of inquiry that they feel might be warranted. The expert should then step back and let the attorney decide if it’s something he/she wishes to pursue. In many cases, expert analysis can alert the attorney to potential issues that should be addressed or at least considered in structuring the case.
Selecting the expert
Normally, the standards for selecting the experts should consider the following factors:
1. The expert’s training and experience must reflect an appropriate level of expertise in the subject matter required.
2. The expert should display the ability to apply constant analysis and flexible awareness to the relationship between the technical matters and the legal context.
3. The expert must be capable of understanding the nuanced communication of those providing the facts for the expert to evaluate (whether conflicting opinions, investigative reports, or other experts on the litigation team).
4. The expert must be able to communicate clearly, effectively, and persuasively to outside parties (e.g. in deposition or trial testimony). This is often a difficult skill-set for the attorney to evaluate. Communication styles vary greatly, and there can be a fine line between persuasive communication, compromised credibility, and perceived bias.
5. The expert should have a personality and style that elicits trust on the part of the trier(s) of fact.
6. The expert should demonstrate a cognitive style that doesn’t get flustered, and can respond quickly to changes in tactics on the part of retaining or opposing counsel.
Most experienced litigators understand the value of properly selected and managed expert witnesses. Unfortunately, many delay bringing the experts on board until later in the litigation, which may not be ideal for maximizing the value that the experts bring to the case. If there are financial or strategic reasons for holding off retaining a testifying expert, the retaining counsel can retain the expert solely as a consultant. In the capacity of a consultant, the attorney can glean tremendous value early on. The consultant opinions can be shielded from discovery under attorney work product, and the scope of the consultant expert’s work can be limited to reviewing documents or helping to educate retaining counsel.