For some clients, hiring an expert witness is a big litigation expense and may even inhibit the ability to take a case to trial. In other cases, the bill for the expert witness is the least of the client’s worries.
How do we determine whether one or more than one expert witness would be appropriate in a given case and then how do we assess the appropriate recommendation for expert witness(es) to clients?
For this blog, I’m starting with an established threshold that at least one expert witness will be necessary to establish liability and/or damages. The question of whether one expert witness can do it all depends first upon the credentials of the expert witness – budget cannot be the first criteria. The trial attorney must put together an outline of facts that can be addressed by an expert and, next to each essential element, identify the primary witness, the foundation testimony, the credentials, and weaknesses that will be exploited on cross-examination.
When the testimony analysis reveals that your expert witness could be defeated easily as to admissibility or weight for a core element of liability or damages, you then would have a duty to determine if there is another type of expert witness that can shed light on the facts in the case that can support your client’s claim. For example, an accident reconstruction expert might find that a motorist is at fault for an auto-accident, but a mechanical engineer expert might be able to pinpoint that the driver’s vehicle had a brake defect that is known by the manufacturer.
If you replicate this analysis over and over until you exhaust your weaknesses, you could find yourself having diagrammed a multi-disciplinary team of expert witnesses. This would not be uncommon for complex litigation, including the likes of lawsuits involving drug manufacturers, medical device manufacturers, banks, oil companies, and publicly-traded companies.
When an attorney is considering the cost of multiple expert witnesses, he or she will need two numbers: the client’s litigation budget and conservatively estimated damages to expenses ratio. For the first, the client’s litigation budget, in all too many cases, lawyers start with a deposit and a good cause of action and then they might encounter client tension as the bills start piling up. It is far better for the client and the firm to perform an early and intensive analysis of the merits of the case and the cost-drivers of litigation, so that everyone can understand the financial obligation that might be involved with litigating.
The second part of the numbers is an odds-maker, and it is not without hazards. Unless you are a seasoned litigator with damage awards in hand, there might be a tendency to overestimate both the award and the probability of achieving the award. Could you recommend starting with the primary expert witness, getting through a standard motion to dismiss, and then adding a second expert, with a third to be added once depositions have been conducted and discovery is assessed?
While the concept of a multi-disciplinary expert witness team may sound daunting at first, with additional analysis you will find you can strategize and become a better litigant by doing due diligence in finding the right expert witness team.
One final point: it’s better to consider more experts than less and earlier than later. As a litigator, you don’t want to find yourself on the receiving end of multiple expert witness disclosures in a case with a date certain for trial.
By: Paloma Capanna, Attorney At Law