The Care and Feeding of Expert Witnesses
THE RHA REVIEW
Volume 9, No. 3, Second Quarter 2003
By John T. Bogart
When I was asked to review material and provide an opinion on an insurance case for the first time, I had little idea what to expect or, for that matter, what was expected of me. In the five years since, I've read numerous articles and legal decisions on what and how experts may testify but have seen nothing directed to attorneys on how best to utilize this legal tool. What follows is a general sketch of advice, from the viewpoint of an expert witness and consultant, that attorneys may find of some interest.
1. Selection Process
Start your search early. I'm always amazed when I receive frantic phone calls from attorneys saying they must designate an expert that day or the next day. Allow time to find an expert, to connect, (considering the usual telephone tag delays), to chat, and to get a feeling for the chemistry between you, and to briefly discuss your case. Ask the potential expert's experience in the course of his career with matters germane to your case, and ask whether he has ever testified on anything similar. Get his general feelings about your case while keeping in mind that he now has only a thumbnail sketch of the issues involved. Tell him up front your time constraints, if and when a written report is required, and the dates of trial and probable deposition. Make sure he has the time to devote to your case. You don't want him "squeezing you in" between other pressing cases. Discuss fees and retainers. Ask him to fax you his most recent CV and a list of prior testimony, along with the names and firms of attorneys who have retained him. Check him out. If he's smart, he'll probably be looking you up in Martindale-Hubbell within minutes of getting off the phone. If not time- and expense-prohibitive, arrange a meeting either at your office or his. If he is going to come to you, make it clear that you will pay for his time and expenses. There may be experts who are willing to give up a day or more to meet with you for free, but they are not going to be the ones whose time is very valuable and thus probably not the ones you want. I've had attorneys who expected me to crisscross the country for an interview with no more compensation than an airline seat. I politely but firmly terminated those inquiries. The first hour of this expert's time is usually free. After that the meter runs, as it does with lawyers.
2. After Retention
Detail as much as possible the areas and questions upon which you are asking him to opine. Obviously, you cannot and should not tell him what his opinions are. After he has had a chance to review materials you have sent, you may certainly ask his opinions and, just as importantly, the bases for his opinions. Challenge him politely to defend them. Your opponent certainly will do so in deposition and at trial! Pick his brain and let him talk. I've had attorneys discover a whole new tack they may decide to take because of what they learned about how things really operate in my discipline. Now that you've retained him, all that he knows and has experienced is at your disposal. Take advantage of it.
3. Documents Sent
Since at deposition he will need to provide a list of all materials that he used and that helped in forming his opinion, you may wish to cover the waterfront and send him everything. When boxes and boxes of materials arrive, he may very well be overwhelmed. Give him some guidance by prioritizing it. I always start with the complaint and get down pat the cast of characters in the case, both individuals and entities. Discuss the allegations of who did what to whom, and when, and guide him to the pertinent documentation on both sides. He needs to understand your opponent's contentions and the bases for them if he is to defend his own and, hopefully, yours. Make sure the deposition transcripts have the exhibits attached or that your expert knows where to locate them. I've run up needless billable hours searching for documents mentioned in deposition transcripts, but not among those sent to me. Discuss with him the reading materials that he has obtained on his own and ask to see them, if practicable. Make sure that he understands the rules of discovery before allowing him to seek advice from his own sources, people or documents. These sources may be invaluable but should first have your approval.
Don't be shy about offering your suggestions after reviewing a first draft of a report. A good expert has (or should have) an ability to see that this report may be instrumental to the case and be willing to make necessary changes or to opine further on stated points without compromising his independent conclusions. In making your suggestions, it is a good idea to preface them with the words, "If you agree."
5. Preparation for Deposition and/or Trial
Meet with him the day before a trial or deposition to go over all of the points he will make as well as to prepare him for topics that you expect will be asked. You don't want to be surprised at deposition by any of his answers. Meeting on the day before also allows him time to run through in his head all of his conclusions and bases for them and to review again, alone in his hotel room, any discussions you had in preparations that day. Then have him arrive fresh in the morning, early enough for any last-minute conferring with you.
This is the most important of all, at least to me. Make him feel he is part of the team and not a "hired gun." Reputable experts bridle at that term and to any vibes they get that they are being thought of that way. Introduce him to the other lawyers on your side and to your client, if you deem it wise. When he is in your office, treat him as you would a client, not as a vendor. If you retain the right person, he is a professional and expects to be treated as one. But while he may be on the team, you are the team captain, and he should not be attempting to try your case for you. If you see tendencies that way on his part, diplomatically suggest that there are legal reasons why you do what you do but that you look to his contributions to those aspects of the case for which you retained him. With a positive attitude on both sides and a clear understanding of his perspective, he should advance your case and help in bringing about a successful result.