Nearly every attorney whose work primarily consists of litigation is familiar with and has retained expert witnesses to help out during trial. However, there are myriad other functions of expert witnesses, all of which attorneys can take advantage of by retaining experts early and using them in various capacities. This article discusses three instances in which experts can be invaluable to attorneys in contexts other than during an actual trial.
While it may be widely understood that experts can help in pre-trial preparation, many litigators are not fully aware of other important contexts that experts can be utilized in. Aside from educating counsel and providing ideas and strategic advice, experts can help settle a case before trial ever occurs and can be used in three particular capacities with immensely beneficial results.
Part One: Using Experts in Depositions: There are two ways that expert witnesses can be of great value to litigators with respect to depositions.
First, an expert can act as a consultant to help prepare the attorney for the depositions of the key witnesses on both sides of the case. For example, expert witnesses can assist counsel by identifying specific individuals at a company or organization who have knowledge pertaining directly to establishing and assessing damages, such as a chief financial officer, head accountant, or comptroller. With respect to liability, experts will often be indispensable in ascertaining the people within a company or organization, such as a project manager, who worked on a particular construction project, or a head of development or engineering, and who knew about and perhaps helped create a given product. In addition, experts can be incredibly useful in helping attorneys determine which documents to use at a deposition, such as projections, marketing plans, and the outcomes of scientific experiments. Moreover, the expert can prepare attorneys for depositions by isolating key questions that a litigator should ask an opposing party’s witnesses. Likewise, experts can assist attorneys in predicting what kinds of questions their own witnesses will be asked during the cross-examination, and in this way, attorneys will be vastly more prepared for their depositions. Attorneys may desire one of their experts to attend the deposition of another witness so the expert can offer an educated opinion of how the deposition went, help the attorney debrief, and assist in preparing for the next step.
A second way that litigators can benefit from their experts is for attorneys to depose their own experts. This is extremely advantageous for attorneys for many reasons. First, deposing an attorney’s own expert gives the lawyer an opportunity to evaluate the expert witness’s performance on direct and cross examination. It essentially provides a “dress rehearsal,” allowing attorneys to assess how their expert is likely to perform at trial. Also, attorneys who depose their experts may be able to anticipate, based upon how opposing counsel behaved at the deposition, what the cross-examination will likely consist of. Furthermore, this strategy can help the attorneys work with their experts to fine-tune and tweak the testimony so the expert will perform favorably at trial. Deposing a litigator’s expert also gives the lawyer an opportunity to evaluate everything the expert took into account in reaching a specific opinion. When the expert witness reveals the bases for an opinion, as well as what was considered in reaching that opinion, the attorney can better understand the expert’s testimony. Additionally, this helps the attorney make sure that a jury would be able to comprehend the expert’s findings. Expert witnesses can play a key role in assisting attorneys with depositions and potentially forcing a settlement.
Part Two: Mediation: The role and importance of experts cannot be overstated with respect to utilizing them to prepare for mediation. Consulting experts can develop various damage calculations, each based upon a discrete theory of the case and operating on different assumptions. This assessment gives attorneys a way to evaluate a range of potential damages, which, in turn, can provide a middle ground that can be reached by the parties to settle the case without a trial. Should the damage models be particularly complex, attorneys may desire their expert witnesses participate in the mediation in order to make the damage assessment clear to the mediator and to help both the mediator and opposing counsel understand how the various calculations were reached. Finally, it may be extremely helpful for an attorney to have the expert attend mediation for the purpose of offering a preview of and basis for that testimony, in an attempt to make the opposing party more likely to settle during mediation, rather than go to trial.
Part Three: Arbitration: Recent Supreme Court cases have given such strong recognition to the desirability of arbitration, that many cases, which previously would have gone to trial, will now be pushed into arbitration. See, e.g., AT&T Mobility v. Conception, 563 U.S. 321 (2011). Not only can expert witnesses testify during arbitration, but arbitration provides much more flexibility with respect to admitting expert witness testimony. As long as an expert can provide credible testimony, their opinion is permissible in arbitration. The Daubert standard, which is employed by most courts in civil litigation, is not required in arbitration. See Norman Brand, “When Experts Testify: Exploiting the Advantages of Arbitration,” 1999, http://www.normbrand.com/Files/articles/When%20Experts%20Testify.pdf. The parties to the arbitration can stipulate a standard for evaluating expert testimony and can even agree that the arbitrator will dispense entirely with issues such as an expert’s credibility or methodology. Id. No specific rule of evidence obliges experts to meet any particular scientific requirements in arbitration, in contrast to what a court requires.
More importantly, the arbitrators are frequently experts regarding the particular subject matter at hand, so attorneys can concern themselves less with trying to explain and simplify complicated issues to a jury. This permits the expert witness to focus on highly complex matters, since the arbitrator will generally understand the foundational issues. Arbitration also has different requirements for discovery than does court, giving attorneys much more flexibility with their experts. In arbitration, attorneys can play a far more active role in collaborating with their expert witness, on both the expert’s report and testimony. Finally, in arbitration, attorneys can rely on the element of surprise since they are not required to disclose the identity or the opinions of the expert until the written direct testimony is created. This gives attorneys incredible flexibility in deciding how and when an expert witness’s testimony will be distributed to opposing counsel or the arbitrator.
Expert witnesses can assist attorneys who engage in civil litigation in many ways. Aside from their value at trial, experts provide invaluable assistance at depositions, mediation, and arbitration. Attorneys who avail themselves of these opportunities will frequently save themselves and their client tremendous amounts of time, energy, and money, while still reaching a highly favorable outcome.
By: Kat S. Hatziavramidis, Attorney-at-Law