These early exercises lay the basis for big strategic decisions like whether to fight, settle, or keep options open. Expert insights on strategy also assist lawyers’ development of early negotiation posture and case narratives.
Working with an expert during early case processes helps to bulletproof strategy and story. An expert’s professional expertise and analysis of industry standards of care—plus the best practices currently used in similar circumstances—will be crucial. Here, we’ll walk through the essential case stages where lawyers can lean on experts to provide insights and critical thinking.
Experts must first understand a case’s working theory. This is the basis for all expert work on a case. Experts should read all provided documents to understand how the attorney intends to use the case facts in a narrative that proves the required legal elements. It’s also the first step toward an expert’s professional analysis.
Experts should review all documentation with certain questions in mind. Are the assertions made reasonable interpretations of the science? Does the chronology of facts match up with their review of the records? Experts can give attorneys feedback on how the theory generally holds up. Their view of the facts is particularly valuable in the content of any technical case aspects that fall within their specialty field.
Experts may also point out any errors or problems with how a legal team has sequenced the case story’s facts. An expert might provide the lawyer with a summary of the chronology of events and point out problem areas. Your expert’s experience and review might reveal accidental misuse of specialized terminology. Alternately, they may catch an unintended flaw in a technical, scientific, or medical point in the argument. Experts’ knowledge can fill in critical knowledge gaps during case theory development.
Standards of Care
One of the biggest areas where experts help mature case theories is in their knowledge of industry standards. Experts are able to articulate the relevant standards for the industry or field at issue in the case. Additionally, experts can explain the relevant standard and discuss the extent to which players in the case did or did not comply with it. An expert’s analysis can also discuss the best practices professionals in the field use when providing similar services or products.
For example, a cardiac surgery expert is retained by plaintiff counsel in a medical negligence case. The attorney looks to the expert for a review of the case theory and this specific standard of care. The expert can analyze whether the accused surgeon had the correct certifications to perform the surgery. They’d also look at how many surgeries this doctor had performed and whether the necessary nursing, anesthesiologist, and technical professionals were present in the operating room. Their review should also discuss the cardiac surgery best practices. This review would include standards for post-surgery ICU infectious control protocols and follow-up monitoring. Without expert insights on these specific medical standards, an attorney might keep a faulty assumption in their case strategy. This, in turn, could ultimately seriously jeopardize success down the road.
Checking All Angles
A good expert will get creative in inspecting a case theory to uncover areas that need more work. One way is to work backward—instead of starting at the beginning, an expert works their way back from the conclusion to see if the argument is really airtight. Of course, it also works to start from the beginning of the presentation and work through each sequential decision to verify the conclusion. It’s not a bad idea for an expert to use both approaches—work backward and forward to bulletproof a theory.
It’s also beneficial to investigate alternative angles. Experts that develop an approach to determining if a party’s actions were reasonable or not can blow a case open for the attorney. A highly qualified expert is in an excellent position to propose alternative analytical approaches. These suggestions can help an attorney gain a competitive edge at an early stage.
Consult and Cite Industry Literature
Attorneys can’t be experts in all aspects of every case. That’s why they hire experts. An expert’s ability to find and analyze relevant industry literature is extremely valuable. It could take weeks for an attorney to read and absorb technical literature that an expert could digest and interpret in just a few hours. An expert with detailed knowledge of the subject matter can efficiently find the cogent points in a literature sea.
For example, in a class action where the plaintiffs allege that a manufacturing plant’s leak of toxic chemicals harmed a community, a lawyer would likely hire an environmental toxicology expert. Such an expert would know where to find the relevant literature on certain chemicals’ standards and health risks. Their specialized knowledge puts them in the best position to efficiently review the literature and draw conclusions to support the case theory. They may even find unhelpful conclusions. These alternate theories are tremendously useful to a legal team in case their opposition attempts to take this approach. During the strategy development stage, expert analysis and insights may be a key factor to a successful case outcome.