Considerations in Selecting an Expert Witness

Conducting Due Diligence on the Expert and Setting Expectations of the Expert Witness in a Litigation Engagement

One of the risks of doing business today is getting involved in business disputes. Disputes take many forms. Disputes can be resolved through negotiation, mediation, arbitration, or litigation. Business disputes are frequently complex and the parties involved are sophisticated and motivated to succeed. It has become routine in complex commercial disputes to use expert witnesses to assist in preparing a case and in interpreting the facts of the dispute. Expert witness testimony and expert reports have become the norm in commercial disputes. This article will provide a framework of considerations when selecting the appropriate expert witness.

One of the risks of doing business today is getting involved in business disputes.  Disputes take many forms.  Disputes can be resolved through negotiation, mediation, arbitration, or litigation.  Business disputes are frequently complex and the parties involved are sophisticated and motivated to succeed.  It has become routine in complex commercial disputes to use expert witnesses to assist in preparing a case and in interpreting the facts of the dispute.  Expert witness testimony and expert reports have become the norm in commercial disputes.  This article will provide a framework of considerations when selecting the appropriate expert witness.

Selecting the right expert often depends upon the nature of the case.  The lawyer and the business people need to evaluate the case to determine if more than one type of expertise is required.  For example, it is not uncommon in construction disputes to use both a construction scheduling expert to explain how the schedule was impacted by certain actions and then to use an accounting expert to quantify the damages incurred by a party.  The size and complexity of the dispute will also determine whether a sole practitioner will be suitable as an expert or whether a testifying expert will require a support team to review documents, prepare graphics, and summarize data.

Selection of an expert requires due diligence by the hiring party.  The expert’s resume should be checked.  References should be sought and then checked.  The expert candidate’s history should also be reviewed with regard to prior writings, presentations, and sworn testimony.  Commercial services are available to gather this type of information. 

It is critical to meet with the expert before any hiring commitment is made.  The expert’s ability to speak clearly, to respond to analytical questions, and the expert’s physical appearance and demeanor are important in considering how the expert’s presentation will be received by a judge, a jury, or arbitrators. 

In screening experts, it is important to provide the candidate with the names of all parties, lawyers, and witnesses related to the dispute.  This is so the expert can perform a thorough conflict check and surprises are avoided later in the dispute process.

In discussing the engagement with an expert, the full range of expectations should be disclosed.  The expert needs to know if he or she is expected to review documents, review depositions, attend depositions, provide a written report, review written reports of other experts, provide deposition testimony, and provide hearing or trial testimony.  The level of effort expected from the expert should be openly discussed.  Where possible, clearly define what the expert must do and what the expert must delegate to subordinates or parallel experts within his or her organization.  Openly discuss the time involved in performing tasks assigned to the expert.  Ask the expert to estimate time for the various tasks assigned.  Be prepared for time estimates to come with reasonable disclaimers and qualifiers.

It is also important that the business people, the lawyer, and the expert reach an agreement on the expected availability of the expert for consultation, phone calls, conferences, or other assistance.  Advise the expert of any pre-hearing milestone dates, discovery periods, and trial hearing dates.  Ascertain the expert’s availability related to the milestones.

Determine the extent of the expert’s knowledge and skills beyond mere technical expertise.  Does the expert have an in-depth knowledge of the topic and is he able to speak and write in nontechnical language?  Does the expert have strong skills in analyzing technical and practical aspects of the dispute, including the use of investigative research skills?  Can the expert perform under pressure?  This can be determined through the interview process and discussions with other counsel that may have employed the expert in other matters.  Word-of-mouth information regarding the expert from other trusted sources is invaluable. 

Once the above items are addressed, the next step is engaging the expert.  In the engagement contract, be sure to identify by name the expert you intend to utilize.  It is not uncommon in situations requiring experts that the expert firm will have more than one person with the skills required for your particular dispute.  Therefore, it is important to identify the individual you have selected to avoid any last minute unavailability based on scheduling or other obstacles.  The engagement letter should also address the option of using the expert as either a consulting expert or testifying expert.  This allows some freedom should the case develop in a way that requires a different type of expertise or eliminates the need for the specific expert you have identified.

The expert has certain expectations of the attorneys and clients in order to perform fully and efficiently.  The case should be described to the expert honestly and completely at the start of the engagement.  Holding back any information, or only negative information, increases costs.  Holding back bad information could discount the value of the expert’s ultimate opinion.  Holding back such information could also undercut the credibility of the entire case by demonstrating a lack of candor by the attorney or the business people.

Experts should be provided early with all available documents, supplemented with all additional documents as they become available from other office or business locations.  Timely and complete provision of documents to the expert may generate a preliminary opinion which could encourage early settlement of the dispute.  It is recommended that document organization be the same at both the expert’s office and the counsel’s office for ease of communication and reference.  It is also suggested that document organization be the same at the client location if that can be accomplished without disrupting the client’s normal document filing and retention practices.  Uniform document organization among the expert, counsel, and the client will also minimize the cost of constantly reorganizing documents.

Important as it is for the expert to be available to the attorney, it is equally important for the attorney to be available to discuss the case with the expert.  Such availability encourages efficiency by minimizing starts and stops by the expert when questions cannot be answered due to attorney unavailability.  Availability also encourages regular communication so the direction of the expert can stay focused on the dispute at hand and not deviate or pursue false leads or deadends.  Availability of the attorney to answer questions of the expert also encourages frank discussions and allows for a dialog that could generate a more accurate and defensible expert analysis.

The expert should have access to relevant client personnel.  This communication should be through the attorney to maintain whatever attorney client or attorney work product privilege may be available.  It also allows the attorney to probe any dialog where inconsistencies are presented or where memory needs to be refreshed.  Providing the expert access to relevant business personnel encourages the expert to obtain information and data pertinent to his or her expertise not initially recognized as relevant by the attorney or the client.  Regular communication by the expert with the client allows for early identification of deficiencies in client information or recollection, discrepancies in client records, and provides the expert with a sense of anticipated testimony by the client which could impact the expert report and the expert testimony. 

The expert also expects the attorney to be available for a “run through” of prospective expert testimony.  The expert and the attorney need to develop comfort with the clarity of the report and the nature of the presentation.  They need to reach agreement on proper terminology to best present the arguments.  Discussing the scope of prospective testimony in detail also allows for development and recognition of the points that support the client position and for development of points to defeat, discount, or overcome opposing expert testimony.  Availability of the attorney to review prospective testimony will allow the expert to identify potential traps and techniques that may be used by opposing counsel to undermine the expert’s conclusions.

Frequent dialogue about the scope of prospective testimony may identify other possible areas of expertise relevant to the dispute in time to determine whether a different expert is necessary to address a newly discovered topic.  Last, a regular dialogue with the expert about prospective testimony may alert the attorney to the possibility that the expert selected is not up to the task or appropriate for the case.

The costs of expert witnesses are of significant concern to clients.  It is important to obtain estimates of the time necessary for the expert to accomplish the tasks in his or her scope of engagement.  It may be beneficial to identify tasks within the expert’s scope of engagement that can be performed by client representatives or paralegals.  Examples of such tasks include document organization, document retrieval, and the preparation of expert exhibits and graphics.  However, it is important that the expert direct all preparation of exhibits and graphics that will be used or relied upon by the expert in the expert report or the expert testimony. 

The budget should be regularly discussed with both the expert and the client to insure that there are no surprises.  During the engagement, there should be frequent and full discussions with the expert about tasks being performed and tasks on the horizon to avoid wasted or misdirected effort.

The expert is charged to provide an unbiased opinion related to the dispute based on the expert’s knowledge and experience.  Neither the counsel nor the business people can tell the expert what to say.  However, counsel can challenge the expert where preliminary understandings or opinions do not correspond to the intended theory of the case.  Counsel can also propose changes to adjectives and adverbs used in the expert report that might be more beneficial to the client’s position.  However, counsel should not urge or require the expert to adopt any position with which the expert is uncomfortable.

Counsel should be intimately involved in reviewing and commenting on any preliminary expert report or draft.  Neither counsel nor the client can impose his or her will on the expert to change or modify the report.  However, counsel and the client can openly discuss with the expert parts of the report that seem deficient or that can be expanded or modified.  The expert can be urged to consider utilizing alternate theories to demonstrate that his or her core theory is appropriate or to demonstrate the inadequacy of the opponent’s theory of the case.

At all times, it must be recognized that the expert is independent and is to be treated as a professional.  Selection of the appropriate expert is key to a strong presentation.  Regular and complete coordination and communication with the expert is essential to minimize costs and encourage early recognition of the strengths and weaknesses in the dispute.  Using the strategies proposed in this article will enhance the client’s chances of selecting the most appropriate expert to present the strongest analysis of the dispute. 

Peter J. Comodeca, Esq. is a Partner with Calfee, Halter & Griswold, LLP, a full-service corporate law firm with more than 150 lawyers and offices located in Cleveland, Columbus, and Cincinnati, OH. The firm’s focus is primarily on business services, business transactions, ,government relations, intellectual property and commercial litigation. Mr. Comodeca’s primary focus is in construction, energy and complex contract law. He serves as chair of the firm’s Construction group and heads up its Construction Litigation practice, as wells as the import/export practice of the International group. He is also co-chair of both the Energy Industry Team and the Probate Litigation Practice. Mr. Comodeca can be reached by e-mail at pcomodeca@calfe.com or by calling (216) 622-8830.