A case was reported where the expert witness cinched the verdict by using discovery materials from the adversary, which the adversary had offered as part of their defense.gavel-discovery-documentation

The case involved claims of patent infringement.  The fact pattern involved data transmission at the point of sale locations via the Internet.  The detail of importance was that the expert witness had the chance to review discovery responses ahead of his testimony.  The advance review allowed the expert witness to process complex data and compare it to the specific, itemized patent claims.


Think for a moment about the fundamental basis for discovery:  to avoid the element of surprise at trial.

Since we have a powerful tool called “discovery,” what good does it do you, your client, or the expert witness if the discovery responses only make it as far as your inbox?

Attorneys need to recognize that an expert witness is not only a critical tool against the adversary; he is a critical part of the lawyer’s team.  The expert witness achieved expert status because he brings specialized knowledge.  His education, training, skills, and experience allow him to approach the same documents from a completely different perspective than the lawyer.  In the best working groups, the expert witness continually educates the lawyer during the trial preparation process.

Part of what causes us to behave in the manner we do with discovery materials is that it takes us time to go through and to understand them.  In complex litigation, the discovery materials are often considerably longer and more detailed than the essential elements of the pleading and of our prima facie case for trial.  There is review, sorting, sifting and extracting.  Discovery that is responsive to well-crafted demands is a heavy lift.

We worry about the expenses associated with the expert witness because quite often our time is either contingency fee (plaintiff) or reduced rate (defense for an insurance company).  The expert witness hourly fees can be the highest effective hourly rate until settlement or verdict.  It can cause us to think with the checkbook ahead of the strategy.

But when we consider our work through a business model, we should all be looking for quality and efficiencies.  The medical records that may take us two days could take the expert witness two hours.  The computer program coding that we will never fully understand may take the expert witness a half day.  Just as we have the ability to cull through volumes of statutes and know what we’re looking for, the expert witness will zero in on and know where to look for the piece of information that could turn an entire case.

By: Paloma A. Capanna, Attorney at Law, Policy Analyst