Over the years, expert witnesses have become just as critical as attorneys in modern litigation.
In light of this trend, attorneys have often asked themselves and others what to look for in the search for an ideal expert.
This article addresses the relationship between experts and attorneys and offers guidance on how, through proper communication and delegation of tasks, litigators can form successful dynamics with their experts and get the most out of these witnesses.
As one legal practitioner has noted,
“When a firm hires an expert to provide the knowledge, support and experience that can help make a case, the legal professionals assigned to the case are just as responsible as the expert for cultivating a positive and successful business relationship.” ~ Ingrid Vinci, “The Perfect Attorney: An Expert’s Wish List,” Above the Law, Mar. 1, 2016.
There are three ways in which attorneys can maximize their relationships and experiences with expert witnesses, and putting these strategies into practice can translate into more successful outcomes in litigation:
1. Adequate Preparation
With respect to expert witnesses and attorneys, two important components of preparation come into play in every case:
The amount and the type of preparation.
With respect to the amount of preparation, “One of the most valuable resources in working with expert witnesses is time. Experts want to work with attorneys who bring them in early on the case development process, giving the staff, the expert, and the case the time they need to fully develop findings, making you better prepared for your case.” Id.
While many attorneys realize that, theoretically, selecting and retaining expert witnesses as early as possible is important, they may fail to understand the consequences of not doing so.
One such repercussion of not engaging experts in a timely fashion is that those who are ultimately retained will lack sufficient time to know what to say, to be briefed on all the issues, and to be prepared for cross-examination or adverse expert opinions.
Another outcome may be even more serious: attorneys who wait too long lose the opportunity to choose the best expert for a particular case. Those experts may have already been engaged by an opponent or another party, or may decline to work with attorneys who do not give them adequate time to prepare testimony.
As one litigator and expert consultant argues, if litigators fail to act quickly, the results can be disastrous: “You can’t review as many expert witnesses as you would like.
Such a quick decision can introduce risk into the equation because you didn’t invest the time to find the precise expertise you needed.
You can end up with an expert that’s just “good enough”– and good enough doesn’t win cases.
Last-minute timelines impact your experts, as well. Even if you’ve secured an excellent witness, he or she may not have enough time to thoroughly investigate and understand the facts of your case, apply the expertise that you depend on, and pursue alternative theories and options when necessary.
An ill-prepared expert is less effective at best, harmful at worst.” Id.
2. Effective Delegation
Law firms often face a problem when they assign different tasks to different staff members without adequate communication.
With respect to expert witnesses, it is common for attorneys to give a staff member the task of reviewing an expert’s qualifications and selecting the best expert.
Although it is understandable that certain tasks must be delegated, expert witness selection and retention should not fall into that category.
Attorneys trying cases need to know exactly what they will be getting and who they are working with, so they should play an active role in the expert selection and retention process.
Attorneys should interact directly with experts as much as possible to avoid a situation where a misunderstanding arises later, and the expert turns out to not be what the lawyer needed and had in mind.
As one lawyer explains,
“While handing off expert witness selection to someone available but less familiar with your case may save time at first, you can end up paying the price down the line. The process frequently suffers from a lack of accountability – someone thought someone else was handling it – which can lead to a failure to follow best case practices and an overall lack of direction.” Id.
3. Letting the Experts do their Jobs
One legal authority explains this premise by noting
“Expert witnesses do not want to work with overbearing, micro-managing attorneys who don’t let them act as the expert in their subject matter… .[T]he attorney should let the expert arrive at his or her own conclusions and encourage the expert to document how they arrived at the end result.” Id.
The attorney’s job, then, is to act as a support source for the expert, providing guidance on matters such as the rules of procedure in a particular case.
Furthermore, attorneys should prepare experts for hostile cross-examination, opposing experts, and how to be most effective in front of judges and juries.
Ultimately, however, experts should be the ones to teach a litigator (as well as jurors) about the matter in which they specialize, while attorneys should simply help guide the process so that such expertise will fit into the parameters of the legal process.
The techniques described herein can greatly improve communication between attorneys and experts, which can translate into winning more cases.
In fact, if litigators “employ these practices at the beginning of your engagement with the expert witness, then he or she will approach the case with a winning mindset. [T]his will set the groundwork for purposeful research and studying of the facts of the case, resulting in a well-prepared expert witness who can clearly and effectively share his or her unbiased findings for the benefit of your client.” Id.
The importance of establishing a strong relationship between experts and attorneys cannot be overstated.
By: Kat S. Hatziavramidis, Attorney-at-Law