Published in Los Angeles Lawyer, April 2003
Expert witnesses are more important than ever. Most complicated cases do not settle until after the experts have issued comprehensive reports or had their depositions taken. This trend will increase because education had not kept pace with the continuing increase in knowledge, causing an ever-widening gap between what the average person knows and what specialists know.
Assume that as part of your representation of your client, you have hired the best expert available. What do you do next to improve your chances for success?
You and your expert should outline the analytical procedures to be performed and estimate their cost. You may feel comfortable with a verbal communication, or you may want a brief written confirmation. Along with this list of procedures to be performed should come a schedule. Experienced litigators ensure that they and their experts understand all deadlines and how these deadlines interact. Identify key records, including those from your opponent. Reach agreement with your expert regarding how much time the analyses will require. Regardless of the reason, however good, for the delay in the receipt of materials, experts cannot produce good work instantaneously after receiving the information they need. This means that you need to anticipate discovery battles for critical records.
Make sure your expert understands how his opinions will fit into the general argument of the case. Communicate the time line of key events in the case and their consequences. In complex litigation, there are often multiple key dates that an expert may need to address. To avoid reworking conclusions and flawed analyses, ensure that your experts are using data that is pertinent to those dates.
Well before your expert reaches their final conclusions, meet with them to learn how their work is progressing. These meetings should discuss the good news and the not-so-good news. Be willing to hear the expert explain 1) favorable and unfavorable facts, 2) available testing methods to address potential challenges, 3) false or weak assumptions, or other inadequate work, 4) opinions upon which reasonable experts may differ, and 5) possible “long shots” that might be worth the effort to investigate.
Insist that your expert support his conclusion with analysis, testing, and inspection. Descriptions beginning with phrases such as “I saw,” “I heard,” and “I examined” should constitute the strongest support for the conclusions. Judges and juries are less persuaded by summaries beginning with “in my opinion” or “based on my experience” than they are by more positive phrases such as “my analysis indicates,” “the data supports” or “the market tells us.” Your opponents will usually discredit experts who do not adhere to the analytical rigors of their profession.
Discuss with your expert whether there is government data or studies that corroborate your position. Government information is often highly credible to a judge or jury. So-called learned treatises or academic publications are not as useful. These works are as numerous and varied as the experts who prepare them. If you find a learned treatise that supports your argument, you can probably also find another treatise by an equally qualified author that conflicts with your position.
If you have more than one expert working on the same case, arrange for them to meet with you in a joint conference in which they have an opportunity to discuss their methodology and tentative conclusions with one another. Many litigators avoid this because the meeting is subject to discovery. While unfavorable disclosure is a risk, the greater problem is having your multiple experts impeach one another with inconsistent testimony.
Avoid the ever-present temptation to have experts accept additional responsibility in areas in which they are not truly qualified. Experts who are discredited in area that they are covering as a favor to you will lose credibility in the more important areas of their true expertise.
Your expert’s work is not complete until it is supported with demonstrative charts, graphs, or other visually appealing exhibits. Your expert may have the best conclusion and credentials but may lose in the courtroom to someone who has prepared a presentation that is more intuitive and easier to understand. If you have selected a superior and experienced trial expert, this person should be able to prepare good graphics with the little assistance. The advantages of having experts prepare their graphics include:
· It is usually less costly, because the expert already is familiar with the entire effort.
· The graphics will be more faithful to your expert’s methodology.
· The expert will be more confident and convincing because of having been personally involved with the creation of the graphics.
Help your experts avoid accidentally supporting your opponent’s case. The fact that you did not hire an expert to address a particular subject does not prevent your opponent from asking the expert some questions about that subject. Because of your familiarity with the dispute, you may not appreciate the difficulty that your witness may face with these surprise attacks. Forewarn your expert of these matters, including related hypothetical questions.
Finally, remember that your expert is there to support your argument, not to state it. Do not allow your expert to profess your arguments and advocacy. Experts should explain and defend their options, and their opinions can certainly favor your client. However, your expert must maintain the attitude and appearance of being an independent servant of the court. If you expert shows unwillingness to acknowledge an obvious favorable point of your opponent or to admit the possibility of a reasonable alternate view, your expert fails the credibility test.
These many concerns highlight the importance of hiring the right expert in the first place. Serving as an expert witness is a difficult job. The attorney’s job is also daunting, but selecting an experienced witness will make that challenging task much easier.
David Nolte is a principal at Fulcrum Inquiry with over 25 years of performing forensic accounting, auditing, business appraisals, and related financial consulting. He regularly serves as an expert witness.