Experts are one of the most valuable and difficult tools in a litigator’s arsenal. Preparing your expert for pre-trial challenges is imperative to any complex litigation.
Experts are expensive. After an expert is retained, briefed, prepared, designated, and deposed, they can cost several thousand dollars. It would be a financial drain to have the expert disqualified just prior to trial and could spell disaster for a client’s case.
An attorney who hires an expert must attempt to determine the admissibility of that expert’s opinions. This paper will examine how the trial and appellate courts have recently treated experts in various types of cases. It will also explore strategies for using experts in identifying potential parties, developing theories of liability, and through the discovery process. Finally, the paper includes a discussion on general strategies for keeping and excluding experts.
- Hiring Experts
- Deciding to Hire an Expert
Because retained experts are expensive, it is necessary to consider the overall potential cost of the expert when compared to your client’s potential recovery. They should only be used when the value of their opinions is compared to the damages alleged. Also consider whether individuals who already have personal knowledge of the incident or unretained experts may be used instead of paying for a retained expert. Sometimes treating physicians and first responders (i.e., law enforcement) may have the requisite knowledge, skill, and expertise to provide expert testimony about the issues present in your case.
Finally, consider the nature of your case and the complexity of the issues at hand. The cost of an expert may not be justified when the issues before the potential jury are not complex. Remember, the rules of evidence set standards for expert admissibility — one of which is helpfulness to the jury. So, consider whether the issues in your case are ones a lay person could understand when presented with a clear presentation of the evidence. If there are complexities regarding policy, design, medical causation, or other areas outside general public knowledge, you probably need an expert.
- So You Decide You Need an Expert — Who do you get?
Once you decide you need an expert, you will need to determine what type of expert you need. To do this you will need a clear understanding of exactly what issues you are seeking expert testimony to prove. Once you have that understanding, start thinking about the educational skills, experience, and training an expert in that particular area would need. Remember, experts must be qualified by education, training, skill, experience, or knowledge in the area you seek to admit their testimony.
There are multiple places to locate experts and multiple things to consider when deciding who to hire. Some ways to locate potential experts include:
- Asking other professionals;
- Using an expert search service;
- Asking people in the applicable industry;
- Researching recent publications relevant to the subject matter at issue.
Here is a list of some general expert search web sites and services:
Once you have located potential experts, you need to figure out who is best suited for the job. Consider logistics. Ask potential experts about their upcoming availability due to existing personal and professional commitments. You want to hire someone who is not already over burdened with other commitments to ensure accessibility. Also ask about costs, billing schedules, and previous experience as an expert in similar matters. Additionally, although not dispositive on the ultimate issue of admissibility, ask if the expert has ever had his/her opinions excluded or limited by a court.
- Now that You Know Who –
Once you have located and retained an expert, you need to provide the expert with information on which to base his/her opinions. That information is going to come from the discovery and other evidence gathering you have done.
Talk to the expert and see what type of information he/she typically relies on to render opinions. If there is still time left before discovery expires, make sure to serve discovery on any area where you find gaps after speaking with the expert. Additionally, as evidence comes in over the course of litigation, make sure you continue to provide it to your expert.