The Evolving and Expanding Role of Expert Witnesses
Frequently, the competing attorneys are inadequately equipped to educate the mediators and arbitrators about the salient facts and the governing legal issues in dispute. Consequently, trial courts increasingly have encouraged attorneys to involve their experts in the ADR process. The author describes the expanding role the expert witnesses may and should have in ADR.
Civil litigation has become increasingly complex and civil dockets have become far more congested because of the COVID-19 pandemic. To avoid the expense and delay of litigation in civil cases, trial courts and litigators have turned to alternative dispute resolution (ADR) in the forms of mediation and arbitration. These forms of ADR can yield expeditious outcomes of civil disputes, but they require sophisticated and well-informed mediators and arbitrators. Frequently, the competing attorneys are inadequately equipped to educate the mediators and arbitrators about the salient facts and the governing legal issues in dispute. Consequently, trial courts increasingly have encouraged attorneys to involve their experts in the ADR process. As a result, the experts now must plan for an enhanced role in the process of addressing the parties’ disputes.
Historically, trial attorneys viewed their experts as bit players in litigation who modestly served by preparing reports, appearing for depositions, and offering testimony in cases that went to trial. This plug-and-play role left experts largely on the sidelines of cases. But the embrace of ADR processes has created the opportunity for experts to play a more enhanced role as a partner of the litigating attorney from start to finish. In my decade of service as a business-court judge, I found experts invaluable in settlement conferences, and the many mediators and arbitrators that I know have had the same experience in ADR. These nearly universally positive experiences have prompted judges and ADR specialists to strongly encourage attorneys to involve their experts in every aspect of case development and dispute resolution. These days, only unsophisticated and overconfident attorneys assign the old-fashioned plug-and-play roles to their experts.
In valuation disputes, just as in litigation over medical-malpractice claims, experts almost invariably understand the subject matter better than their retaining counsel do. Thus, experts are more likely to effectively explain the litigants’ positions to ADR specialists, who benefit greatly from the experts’ input. Moreover, dispassionate experts furnish analysis and suggestions that better equip ADR specialists to arrive at proposals likely to resolve disagreements. As a result, experienced attorneys increasingly appreciate the value that experts bring to ADR.
So, how can knowledge of all these benefits be best disseminated? First and foremost, the judges who frequently handle valuation disputes must put the word in the street. Every time I am given the opportunity to address a group of commercial litigators or divorce attorneys, I extol the virtues of valuation experts. Indeed, I am discovering that business-court judges are all becoming strong advocates for more expansive roles for experts. As we preach at nearly every opportunity, experts save attorneys time and their clients money. And better yet, experts can facilitate clearer understanding of the issues, which leads to much more productive discussions in ADR sessions.
Because attorneys who litigate valuation disputes have first-hand knowledge of the value of experts, my business-court colleagues and I have enlisted attorneys to join us in advocating for increased expert involvement in litigation that includes valuation issues. In much the same way that predictable rulings from business-court judges engender settlements before litigation is even initiated, early involvement of experts in ADR can bring the competing parties to understandings about how and why a dispute should settle before or soon after a case is filed.
But experts must be their own advocates. In situations where retaining counsel proposes little or no involvement of experts beyond the traditional role of report-writing and testifying, the experts should suggest a more enhanced role earlier in the dispute-resolution process. Although that may cause some discomfort for attorneys accustomed to a more traditional, confined role for experts, that uncomfortable discussion over an expanded role is worth the time and effort. Never have I heard an attorney voice dissatisfaction with a decision to assign to an expert an expanded role in case development and resolution. Perhaps the suggestion of a reduced fee in exchange for an expanded role may provide the inducement needed to persuade an attorney to make the choice in staffing a case. Perhaps a preview of the enhanced services will result in acceptance of such a proposal. But a small sacrifice in a few cases may be all it takes for word of mouth to repay your efforts with broad acceptance of an expanded role in future cases.
If an expert can convince a retaining attorney to share the responsibilities for preparation and presentation of the client’s position, the client will almost certainly reach the conclusion that the expert’s enhanced involvement is worth the cost. With the developing emphasis in valuation disputes on ADR, experts playing a central role in the ADR process will become the norm, rather than the exception. In the old days, attorneys relied on experts almost exclusively to demystify the valuation issues for the jury at trial. But now, with jury trials backed up for months or even years because of docket congestion resulting from the COVID-19 pandemic, reliance upon ADR has increased dramatically, and the concomitant need for experts to offer advice to mediators and arbitrators has opened the door for experts to take on enhanced roles as advisors and educators in disputes. I encourage experts to take advantage of this new reality by charting a path that defines a new and enhanced role for experts that makes better use of their knowledge and experience.
Those of us on the bench and in the bar must join with experts in promoting a paradigm shift in which experts become central figures in the ADR process. The results of that paradigm shift will certainly include more productive discussions in ADR proceedings, more cost-effective dispute resolution, and less docket congestion for courts. For those reasons, we must be partners in the evolving process of redefining and expanding the role of experts. For too long, those of us in the business of running litigation have leaned too heavily on attorneys for valuation guidance and education. The time has come, and the impetus now exists, for experts to take their rightful place at the center of dispute resolution when valuation issues are at play.
Hon. Christopher Yates serves as an appeals court at the 3rd District of the Michigan Court of Appeals. Judge Yates is a former assistant U.S. attorney for the Eastern District of Michigan and federal public defender for the Western District. He was the chief federal public defender prior to becoming a private practice lawyer in 2004. He first served with the firm of Willey, Chamberlain & Yates and later became a partner in the firm of Yates, LaGrand & Denenfeld. He was appointed to the circuit court in 2008. He has also taught at the Michigan State University School of Law and Davenport University.
Judge Yates may be contacted at (616) 456-1167 or by e-mail to CYates@courts.mi.gov.
