The Continuously Expanding Role Of Experts In Litigation

    The role of experts in high-stakes litigation has become more prominent than ever”.  As such, it is important for litigants to know about the different types of expert witnesses and how they can be utilized.  This article seeks to provide a primer on the variety of experts that exist and the ways that litigants can and should use them to maximize their chances of success and profitability.

    Different Types of Expert Witnesses

    Experts Come From A Variety Of Backgrounds And Disciplines

    Experts are utilized to provide specialized knowledge that would be helpful in deciding the case correctly.  Litigation arises in a variety of areas and industries. As a result the experts needed to prosecute or defend cases are diverse.  Whether the matter involves personal injury, medical malpractice, divorce, intellectual property, regulatory, or white-collar issues, the appropriate use of expert witnesses can tip the scales in litigation for nearly all subject-matters.  Listed below are some of the most common areas in which experts are used:

    • Medical
    • Forensic
    • Accounting
    • Antitrust
    • Construction
    • Securities
    • Psychological
    • Police training and supervision
    • Foreign legal experts
    • Loss of future earnings
    • Economics
    • Trademarks
    • Patents
    • Copyrights
    • Trade secrets
    • Software
    • Rights of publicity
    • Information technology
    • Databases and customer information
    • Licenses
    • Communications rights
    • Intangible Assets

    One area where experts are constantly used is in the ever-growing intellectual property litigation arena where the matters often involve highly technical topics that are critical to the central issues in the case.  However, a common misconception is that experts are only utilized in high-stakes, technical litigation.  To the contrary, experts are routinely used to prove damages in personal injury cases, to prove malpractice in medical malpractice cases and forensic accountants and other financial examiners are even used in divorce proceedings to uncover and trace assets.

    Do I Need An Expert?

    The initial question for litigants and their attorneys is whether or not they need to hire an expert at all.  Generally, an expert can and should be used when he or she has specialized knowledge that would be helpful in deciding the case correctly.  Therefore, making this decision often includes a detailed analysis of the facts and central issues for the Court to decide; as well as reaching out and speaking to various experts to determine what their value could be.

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    Consulting vs. Testifying Experts: Which Do I Need?

    Attorneys either use experts as testifying experts or consulting experts.  Consulting experts primarily support the litigation team behind the scenes, while the testifying expert prepares reports that will be shared with the opponent and will ultimately testify.

    Consulting Experts: Advisors That Prepare Litigants Behind the Scenes

    The consulting expert aids the lawyers in getting a handle on the facts, can identify the strengths and weakness in both parties’ cases and respective arguments, and can also opine on risk and potential damages.  They are often used to examine and explain issues surrounding certain subject areas that an attorney would not likely be expected to know ‑ for example, the structural engineering of a component in a product liability case.  This can be a crucial step in the early stages of the case, including crafting the complaint or response and motion practice.

    The consulting expert’s work-product is protected and will generally not be seen by the opponent; as long as it is “necessary, or at least highly useful, for the effective consultation between the client and lawyer which the privilege is designed to permit”.

    This stands in contrast to testifying witnesses, whose reports must be disclosed to the opponent.  Additionally, consulting experts  generally do not have to be approved by a Judge prior to their involvement.  They are simply hired and begin to consult immediately.

    The consulting expert’s primary role is to prepare the attorneys and ensure that they have sufficient knowledge of the subject-matter so they are able to make informed decisions and to be as effective as possible.  Consulting experts are somewhat in the shadows providing the attorneys with the knowledge and ammunition they need to make cogent arguments and strategic decisions.

    Testifying Experts: On The Front Lines

    Choosing the correct testifying expert is of critical importance.  First of all, the report that the testifying expert writes will be disclosed. Secondly, the expert will ultimately be providing information to the Court on oftentimes the most critical issues.

    There is a further categorization of testifying experts.  There are those who have particularized knowledge of the subject matter at hand (“subject matter experts”). And those who have the ability to valuate damages (“damages experts”).

    The subject matter expert is often employed to prove liability, i.e., to win the lawsuit in the first place.  These sorts of experts span across all industries and disciplines.  In antitrust cases economists are often used because the ultimate issue to decide is quite often “a fundamentally economic question”. Experts are also frequently used in class certification hearings to provide evidence to support, or oppose, a bid for class certification.

    In technology-related intellectual property cases experts are routinely used where the key liability question is whether the technology is actually infringing upon a patent.  With tax cases and investigations, one of the first steps defense counsel will take is to retain an accountant to work under his direction.  In that regard, a study determined that in the majority of tax cases in which the Court found for the government, the Court determined that the forensic accountant’s performance was not effective.  But when the Court favored the taxpayer, the Court always considered the taxpayer’s expert to be effective.  These are just a few examples of the many areas in which subject matter experts can positively impact litigation.

    A damages expert opines on how much the case is really worth.  Damages experts can range from those who can disentangle complex financial transactions and schemes from those that can valuate intangible assets, to experts in psychological pain or loss of future earnings.  Which damages expert is needed depends upon the sort of damages at issue in each particular case.

    How Do Testifying Experts Communicate To The Court?

    Experts are called upon to communicate their opinions in various ways.  Before an expert testifies, he or she must provide a written report to the other side.  Ultimately, the expert will testify in front of the jury and be asked questions by both sides’ attorneys.  However, at least one federal Judge has used “Hot-Tubbing”. Where opposing experts are produced in front of the Judge and the Judge (and not the lawyers) ask the experts questions.

    Because the expert will actually be testifying, it is critical that the expert is able to communicate effectively.  “No matter how brilliant the expert is or how impressive the resume, an expert is of little value if an average juror cannot understand the testimony.”

    In many cases, choosing the correct expert plays one of the most crucial roles in enhancing the litigant’s chances of success and determining damages.  Therefore, cases can live or die by the expert’s guidance, reports, testimony and damages valuations, whichever hat the expert may be wearing at the time.