Choosing the right expert witness can exponentially increase your chances of a successful outcome at trial. But like in any other professional relationship, things can go wrong. Whether these issues stem from disagreements over substantive testimony or are simply due to differences in personality, even the best experts and attorneys may experience conflicts during the course of litigation. Below are some tips to prevent common problems that may arise when working with an expert.
1) Insufficiently Researching Your Expert
There is no shortage of places from where an expert can be found – journals, periodicals, trade association websites, academic publications, and good, old-fashioned word-of-mouth referrals. Expert witness services firms (such as The Expert Institute) are another reliable method for finding the perfect expert, as these firms offer extensive background history and comprehensive evaluation tools. That being said, an attorney should always research their expert to ensure that the individual is not just qualified and experienced, but also that they are a good fit for the particular issues at hand. Reviewing an expert’s curriculum vitae is a start, but if available, you should also review any past work of the expert, such as written publications, studies, experiments, or even past trial records. Overall, the more research conducted on your potential expert in the preliminary stages can avoid surprises once the expert is retained.
2) Ignoring Potential Grounds For Disqualification
Addressing an expert’s potential conflicts of interest or previous disqualifications may seem like obvious due diligence, but it can be an easy step to overlook. This question should always be addressed before officially entering into a retainer agreement. If an expert was previously disqualified from testifying, that is a fact that should be disclosed as soon as possible. Of course, it does not necessarily mean that the expert will be disqualified from testifying again. Some experts are disqualified on relevancy grounds, which may mean that their testimony was just simply not useful to the case. However, more substantive issues, such as the expert’s practice area being too novel or unsubstantiated, may present more of a problem.
An expert’s past work history may also be cause for disqualification. If an expert was previously retained or employed by the opposing party, a conflict of interest may exist that would warrant disqualification. Thus, discussing an expert’s past courtroom experience is a simple way to avoid a potentially catastrophic problem down the line.
3) An Inadequate Retainer Agreement
The retainer agreement between an attorney and expert is the core of the relationship. Like any solid contract, a retainer agreement should specify the terms and conditions with sufficient particularity so that there are no misunderstandings. It may be tempting to rush into signing a retainer, especially in the midst of stressful and fast-paced trial preparation. But it is critical that the parties understand their obligations under the agreement so that everyone can work together amicably and efficiently.
The typical terms and provisions should include, but are not limited to: the duties performed, the rate of compensation, the estimated preparation time, the documents and materials expected to be reviewed, and most importantly, the specific role of the expert, i.e., a testifying witness or consultant.
4) Lack of Preparation
If an expert is thoroughly vetted and a comprehensive retainer agreement is drafted, both the expert and attorney should have a clear understanding of their obligations. However, sometimes miscommunication occurs and the parties fail to agree on the types of preparatory work involved. Depending upon the practice area and the facts at issue, an expert’s preparation may include reviewing voluminous documents, conducting experiments, recreating accidents, or analyzing scientific methodologies. In order for an expert to reach a fully formed and complete opinion, all necessary materials must be reviewed. It is incumbent on the attorney to ensure that all necessary information is provided to the expert in a timely manner so that the expert is free to conduct whatever preparation is necessary.
On the other hand, sometimes an expert may have to look outside of counsel to obtain materials that are required to reach an accurate opinion. After all, attorneys are advocates for their clients and might not be in possession of (or care to be aware of) information that is countervailing to their interests. But any qualified, credible expert will want access to any and all facts as they are preparing the formation of their opinion.
5) Improper Communications
Although an expert, in many respects, is considered an extension of the legal team, there are certain caveats to communications that should give both the expert and attorney pause before putting anything in writing. Any documents created by an expert might be discoverable. As such, experts should not commit anything to writing without first discussing with the attorneys. For example, under Rule 26 of the Federal Rules of Civil Procedure, expert witnesses must disclose to the opposing party a report previewing the expert’s proposed testimony. The report must contain “all opinions the witness will express and the basis and reasons for them.” Rule 26(a)(2)(B) also mandates disclosure of facts or data considered by the witness, any exhibits the expert intends to use, the witness’ qualifications, a list of other cases in which the witness testified, and a statement regarding the expert’s compensation for testifying. Because any materials that an expert relies upon are discoverable by opposing counsel, attorneys should prevent needless production of confidential information. Likewise, an expert should not put any drafts in writing until they are sure they have reached their final opinion, so as to avoid any incorrect or incomplete work product from dissemination.
6) Not Conducting a Trial Run
No matter how qualified an expert is, testifying in open court is an arduous and often unpredictable task. There are many unquantifiable expert qualities that can nonetheless have a strong effect on their ability to effectively convey their opinions to the jury. Presentation skills, oratory ability, and general likeability are all important traits to consider. By conducting a mock direct and cross examination of your expert, you can better ascertain their strengths and weaknesses in these regards. An attorney and expert should work together to rehearse testimony to test out lines of questioning, ensure the answers are clear and concise, and to prevent any confusing scientific terminology or legalese.
Overall, the purpose of retaining an expert is to clearly explain the material facts at issue to the jury such that they can render a decision. With the right expert, diligent research, and some time dedicated to preparation, common problems that may plague attorney-expert relationships are easy to avoid.
