Making Mistakes With Expert Witnesses

There is little doubt that litigation can be stressful for clients and attorneys alike. With filings, briefs, and deadlines, the litigator has little time to worry about whether her or his expert witness is getting the job done. The attorney usually has one shot for the expert to get the case right. If the expert witness fails, it can have wide-reaching implications for the entire case.

Experts aren’t perfect. Mistakes can be made and deadlines can be missed. Pertinent documentation can be overlooked, and erroneous conclusions can be drawn. These can be fatal errors for the litigator.

Managing the expert witness is a critical part of litigation. It becomes even more important when the attorney is working with a less experienced expert or one with which she or he hasn’t worked previously.

Proper management of the expert witness process will help ensure that the attorney receives relevant, accurate, and reliable results from the expert.

Taking chances with your client’s case isn’t smart. Learning how to best utilize an expert to prevent problems down the road is. Proper preparation and guidance is the key.

Deadlines
One of the most challenging parts of working with an attorney is meeting deadlines. It seems that most often this is challenging because attorneys and their clients delay in seeking expert help. I work on many cases in which deadlines are tight due to the procrastination of counsel, the client, or both. With delays, you run the risk of having incomplete work performed. You may be missing out on the best analysis and results.

It is never a good idea for a litigator to wait too long to locate an expert. The best, most qualified experts are usually quite busy and often not able to accept cases with tight deadlines. Waiting too long to look for an expert means that the attorney may have to settle for someone with a weak background or qualifications.

Wouldn’t it be better to have more time to speak to a few experts and determine who might be best qualified for your case? Wouldn’t you prefer the time to ask colleagues for referrals and wait for their recommendations?

Another excellent reason to look for an expert early is the avoidance of conflicts. What if the expert you prefer has already been retained by opposing counsel? It’s better to lock in an expert with a retainer and be assured that you’ll have your first choice assisting on the case.

Ample preparation time also provides the attorney with the opportunity to quiz the potential expert on her or his knowledge of the legal system and the type of case being presented. A discussion of the parties involved, the scope of the case and the expert work, and experience in that particular industry or type of claim can help narrow down the expert’s true qualifications.

Extra time also gives the attorney ample opportunity to find the right type of expert for the case. Sometimes attorneys think they know what kind of expert is qualified to assist in a case, when in fact someone else may be more appropriate. In my case, attorneys regularly call me seeking business valuation services. While some forensic accountants do provide those services, I’ve found that better results are often achieved by a professional who specializes in business valuations. An attorney with ample time to search for the right expert will appreciate being pointed in the right direction.

Once on board and working, the expert still runs the risk of not meeting deadlines. An expert witness may miscalculate the time and effort required to complete the necessary work, and may therefore put your deadline in jeopardy. That’s why it’s so important to do a thorough search for a good expert. Don’t underestimate the power of referrals and references, as these often speak to the reliability of the expert.

Work Product
Lawyers must work closely with their experts on the work plan, progress, and deadlines. By monitoring the progress of the expert witness, you can avoid surprises in billings and disappointments in the work product. A close working relationship also ensures that you are heading down the right road in terms of preparing for deposition and court testimony.

An attorney always hopes for a strong and accurate report. Keeping tabs on the work of the expert can help with this. Some attorneys like the idea of the creation of a “draft” report. This allows the attorney time to sit down with the expert witness and review the preliminary opinions. Together, they can identify weaknesses in the report, as well as opportunities. Other attorneys do not like drafts, but prefer informal conferences with the expert to discuss potential opinions. Proper time management will allow these discussions to take place.

Sometimes work is impeded by a delay in document productions pursuant to discovery. Hopefully your careful selection of an expert has netted a witness who is familiar with such delays and prepares accordingly.

Once you’ve worked with a particular expert once or twice, you will have developed confidence in her or his abilities. This may allow the attorney to monitor the progress on a case less closely, and instead rely upon the expert’s experience and track record. A good expert will come through for you, even in the face of tight deadlines and less-than-optimal evidence with which to work.

Complete Package
Never assume that the expert witness you engage will know exactly what to do with your case. Make sure that she or he is very clear on what needs to be accomplished, and monitor the progress toward the end goal. Never assume that things are going along just fine, because you don’t want to find out that your expert went down the wrong path on the day the final report is due.

Make sure that your expert is being paid for her or his services promptly. It is only fair that the expert be paid promptly for the services performed. Payment of invoices can often be an issue, and doing so on a timely basis will help ensure that your expert continues to work toward a final report.

Don’t be afraid of fees required in advance, especially if you are retaining a top-quality expert. You should expect that she or he is in demand, and advance fees are a small price to pay in return for guaranteed services.

Act early and decisively in your search for an expert to assist with your litigation matter. This gives you the best chance of finding the most qualified, most appropriate expert witness. Communicate well and often with your expert to make sure that you’re on the same page with the work and results. Don’t take chances by delaying your search or failing to work closely with your expert.