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Winning the "Battle of the Experts" While Keeping Fees under Control

By Lynn S. McCreary and David R. Singh – September 27, 2012

Whether opining on liability, causation, or damages, expert witnesses can make or break your case. The outcome of trial often hinges upon the likeability, credibility, and communication skills of one or more star expert witnesses. Complex cases ordinarily do not even settle until after expert reports are submitted and key experts have been deposed, providing a barometer for the likelihood of success at trial.

Expert witnesses are also compensated like the critical players they are. The one-thousand-dollar-an-hour expert witness is no longer uncommon, nor is the expert witness who receives more than $1 million over the life of a case. Especially in complex cases, where each side often retains several experts, such fees can quickly mushroom.

Best Practices for Selecting an Expert Witness
Identify key experts and retain them early in the litigation. Doing so can provide you with tactical and practical advantages in many respects, including:

  • Key experts can educate counsel about the complex and technical issues in the case at an early stage, and can help identify critical weaknesses in a case. Educated counsel will, in turn, be better equipped to develop persuasive, workable arguments and trial themes allowing consistent themes, theories, and even word use throughout the trial.
  • Timely retention of expert witnesses permits them to help guide discovery toward the production and development of evidence necessary to support their opinions.
  • It is easier for an expert witness to be involved in the development of arguments and positions from the onset, than being forced to mold opinions to fit the preexisting arguments and positions counsel has already established.
  • Expert witnesses who are involved as part of the litigation team early will be more comfortable with the facts and issues in the case and more likely to exude confidence in the face of intense cross-examination at a deposition or trial.
  • Early identification and retention of experts precludes your opponent from retaining that individual.

Selecting an expert is easy; selecting the right expert is not. Counsel must carefully vet whether a potential expert is the right fit for the case. In doing so, consider the following guidelines:

  • Understand the credentials relative to the expert’s business, and retain an expert who has leading credentials in his or her field. Do not be swayed by résumé fillers, such as membership in pay-to-join organizations. Look instead for educational credentials, professional accomplishments, and industry or peer recognition. Doing so will minimize the risk of a successful Daubert challenge and make the expert’s testimony more persuasive to the finder of fact.
  • Before retaining an expert, meet with the expert in person to evaluate his or her appearance, demeanor, and personality. No matter how credentialed your expert, if he or she does not look the part of an expert in the field, or is not likeable, the expert will not persuade the jury. On the other hand, empirical research suggests that an expert who is attractive, personable, and likeable will often be perceived as a more trustworthy source than someone who is not. See, e.g., Stanley L. Brodsky, P.h.D, et al., “Credibility in the Courtroom: How Likeable Should An Expert Witness Be?”, J. Am. Ac. Psychiatry Law, 37:4: 525–32 (2009); Robert J. Cramer, M.A., et al., “Expert Witness Confidence and Juror Personality: Their Impact on Credibility and Persuasion in the Courtroom”, J. Am. Acad. Psychiatry Law, 37:1: 63–74 (2009).
  • Provide the potential expert witness with information about the case from public filings (e.g., the pleadings and any motions to dismiss that set forth both sides’ theory of the case). Determine whether the expert generally agrees with your client’s positions in the litigation. If he or she does not, it may be best to select another expert whose views are more aligned with your client’s.
  • Try to understand the methodology the expert would employ. Does it make sense to you as someone familiar with the case? Will it make sense to the jury in the particular jurisdiction? Will the opinions be the product of sufficiently reliable principles and methods to pass muster under Fed. R. Evid. Rule 702?
  • Test the expert’s ability to provide direct and succinct answers to difficult questions. Expert witnesses who respond to questions with longer-than-necessary answers often make gratuitous admissions, can come across as afraid to admit anything and, particularly in long trials, can irritate the judge and/or jury. An expert who does not speak with confidence, who meanders from idea to idea, or who pauses too long between ideas, will also be ineffective.
  • Evaluate the expert’s ability to explain complex opinions in simple terms that the jury will understand. Many experts work primarily with others in their highly specialized field, and are thus used to speaking in industry-specific or academic jargon instead of plain English. An expert who speaks above the jury’s head, however, may be resented and is unlikely to effectively reach the jury.
  • Be wary when a potential expert is too agreeable with your positions. You want an expert who will carefully evaluate your adversary’s position and thoughtfully explain why it is incorrect. An expert who is too agreeable may also become agreeable with your opponent during a deposition or trial, or may simply be telling you what you want to hear, irrespective of whether it is correct.
  • Select an expert who seems genuinely interested in your case. If the expert is interested, he or she will be more likely to commit the time necessary to draft a thorough expert report and to prepare to testify at deposition and at trial.
  • Review the expert’s prior publications to determine whether he or she has taken any positions that are adverse to your client’s position. Determine whether the expert has previously served as an expert and, if so, gather and review the expert reports and transcripts from any testimony in those cases to confirm that the expert has not taken adverse positions. Run searches on LexisNexis or Westlaw to see if the expert has ever been precluded from testifying at trial or criticized by any judge regarding an expert report or testimony.
  • Contact references regarding the expert’s prior performance. If the candidate has served as an expert witness before, call the attorneys who used the expert as well as opposing counsel in those cases. Ask for a candid assessment of the strengths and weaknesses of the expert and how he or she fared.
  • Conduct research on your prospective expert as though he or she was retained by your adversary. Conduct simple Internet searches on Google, Facebook, LinkedIn, and other social networking sites to ascertain what others are saying about your expert, and what your expert is saying about himself or herself. Perform IDEX and Lexis searches to identify cases in which he or she has been involved. Obtain expert opinions submitted by your proffered expert and, if available, obtain and review depositions proffered in similar cases. Know more about your expert than your opponent can know—and be comfortable knowing that no land mines await you during cross-examination.

Best Practices for Assisting the Expert in Developing Opinions
Once the expert has been retained, counsel should meet with the expert again to provide a more thorough overview of the facts and answer the expert’s questions about the case, including any deadlines for deliverables and dates to keep open for preparation and/or testimony. Counsel should resist the temptation to present an overly sanguine portrayal of the facts. Instead, counsel should specifically highlight those facts that the adversary is likely to emphasize during cross-examination and/or in rebuttal expert reports so that the expert can account for these facts, rather than ignore them, while developing opinions.

Counsel should consider whether their communications with the testifying expert are privileged. In 1993, Fed. R. Civ. P. 26(a)(2) was amended to greatly expand expert discovery, requiring the disclosure of not only the materials upon which a testifying expert relied, but also all “data or other information considered” by the expert in forming his or her opinion. Under this rule, communications between counsel and testifying experts were discoverable. Given this rule, counsel often jumped through hoops to keep written communications with testifying experts to a bare minimum, so as not to educate opposing counsel about potential weaknesses and to prevent the creation of impeachment material.

Effective December 1, 2010, the Federal Rules were amended to protect communications between counsel and testifying experts as work-product. Fed. R. Civ. P. 26(b)(4)(C), however, excepts from protection as work-product communications between counsel for a party and experts required to submit disclosures under Rule 26 that relate to (i) compensation, (ii) facts or data provided by counsel and considered by the expert, and (iii) assumptions provided by counsel and relied on by the expert. Under the recently added Fed. R. Civ. P. 26(b)(4)(B), draft expert reports are now expressly protected as work product.

The amendments to Rule 26 should not be viewed as an invitation to throw caution to the wind in communications with testifying experts. For starters, the contours of the exceptions set forth in Fed. R. Civ. P. 26(b)(4)(C) are not always clear, and a court may construe the exceptions broadly. See, e.g., Fialkowski v. Perry, Civ. Action No. 11-5139, 2012 WL 2527020, **1–5 (E.D. Pa. June 29, 2012) (requiring the production of notes prepared by the plaintiff at the direction of counsel because they were considered by the plaintiff’s testifying accounting expert in forming his opinions); Republic of Ecuador v. Bjorkman, Civ. Action No. 11-cv-01470-WYD-MEH, 2012 WL 12755, *5 (D. Colo. Jan. 4, 2012) (explaining that, notwithstanding the 2010 amendments to Rule 26, materials reflecting a testifying expert’s, but not the attorney’s, mental impressions and theories, are not protected by the work-product doctrine). Even when the work-product doctrine does apply, it may, in exceptional circumstances, be overcome upon a showing of “substantial need” and “undue hardship.” Moreover, in complex cases, there is often the risk of successive or parallel state-court litigation and communications between counsel and the testifying expert may not be privileged in state proceedings, in which the Federal Rules of Civil Procedure do not apply. Accordingly, while written communications with testifying experts need not be avoided altogether, counsel should still exercise judgment and common sense in deciding what information to exchange with the testifying expert in writing.

After the expert has had an opportunity to review and digest the pleadings and discovery materials that counsel has provided, counsel should hold additional meetings to answer the expert’s questions and discuss his or her preliminary opinions. Counsel should be careful not to instruct the expert about what opinions to include or not include in the expert report, as this both raises ethical questions and risks souring the relationship between counsel and the expert. Counsel and the expert, however, should continue their dialogue until each is comfortable with the opinions that the expert will include in his or her expert report.

If the case is in federal court, counsel should advise the expert that each of his or her  opinions, and the bases for them, must be disclosed within the four corners of the expert report. Otherwise, the expert may be precluded from testifying to the undisclosed opinion and/or bases at trial. The expert thus needs to know the facts and opinions he or she intends on proffering cold before expert reports are submitted to the other side and before their deposition.

Thorough preparation is also critical to the expert’s success at his or her deposition and at trial. An expert witness who knows the facts, and his or her opinions and the bases for each opinion, will be more prepared and authoritative, and far less likely to give needless admissions than an expert who has not personally done his or her homework well in advance. Counsel should be especially careful when the expert has delegated the job of reviewing pleadings, discovery documents, and preparing the expert report to others at the expert’s organization.

Good experts will also put themselves in the shoes of their adversaries and attempt to foresee attacks on their qualifications, the methods and principles used to formulate their opinions, and flaws and/or assumptions in their intended opinions. Experts should ask themselves: What assumptions and/or facts are critical to my opinions, and how would I respond if I was assigned to the other side? Counsel and the expert should discuss how to respond to these questions in preparation sessions prior to the expert’s deposition, and counsel should conduct a mock examination of the expert on the most difficult of these topics.

Best Practices for Controlling Expert-Witness Fees
In most complex litigation, it is impossible and inadvisable to not retain any expert witnesses. Expert witnesses, and their significant witness fees, are thus a fact of modern litigation. There are, however, a number of ways to control expert witness fees.

  • Counsel must know exactly why an expert witness is needed. Before searching for potential experts, review the law applicable to your case to determine the issues on which expert testimony is needed. Once an expert has been retained, try to limit the scope of the expert’s work to achieving only those objectives. Before expanding the scope of the work, ask yourself how such expansion would prove or disprove the legal elements of your or your adversary’s claims.
  • Some attorneys prefer to wait until fact discovery is nearly complete to retain expert witnesses because they believe that this will reduce expert-witness fees. In such cases, the expert may actually bill more total hours because of the need to develop arguments that are “catch-up” in nature, rather than well planned in advance. Furthermore, if the expert is retained early, he or she can advise you about discovery that would facilitate rendering opinions in the case, such as documents that should be requested or questions that should be asked. With the information requested, the expert might need to spend less time trying to find support for his or her expert report.
  • Consider using an in-house corporate employee, rather than a third party, as an expert witness. In cases where the quality of a corporation’s product, manufacturing process, or service is at issue, in-house corporate employees will necessarily have more specialized knowledge than anyone outside the company. With respect to such technical issues, an in-house employee may actually be more persuasive than a third-party expert. The obvious drawback to using an in-house employee as an expert is that he or she will be attacked as biased; but a third-party expert can be retained to validate the in-house employee’s expert report. Because that expert will not be conducting firsthand analysis, other than peer review, this approach could lower overall fees.
  • Conducting thorough due diligence up front to identify an expert with preexisting knowledge about the subject matter in your case can result in significant cost savings. That is because the expert will have to do less background work to get up to speed about the issues and because the expert’s preexisting knowledge or studies can be applied to your case. Furthermore, if the right expert witness is identified, it will greatly reduce the risk of squandering resources on an expert who will be disqualified on a Daubert motion.
  • Counsel should memorialize in writing the details of the fee arrangement with the expert. If the expert candidate proposes working with others at his or her consulting firm, which is often the case when big consulting houses are retained, find out whether there is a rate structure for other employees at the firm and who will do the work. Advise the expert in advance of the level of detail your client expects in billing reports. To avoid any misunderstanding, discuss your client’s policies on reimbursement for meals, travel, and other expenditures.
  • Counsel should clearly communicate the approved scope of work, budget, and time frame. Once the expert has been retained, discuss with him or her the preliminary work that the expert believes needs to be done to render an opinion in the case. Ask for concrete estimates regarding how many hours he or she anticipates spending on each proposed task and whether he or she expects any additional out-of-pocket expenses. After checking with the client, let the expert know what tasks have been approved and the budget for each task. Advise the expert that your client will not pay additional fees without prior approval.
  • Counsel should frequently check in with the expert, regarding his or her progress. More often than not, when expert fees start to spiral out of hand, it is because counsel has not been vigilant about knowing what the expert is working on. Nothing is more important to keeping expert-witness fees under control than constantly monitoring what the expert is doing and how much he or she has billed to date. This is especially true when working with an expert for the first time. Monitor the progress of the experts’ work--and the size of their bills—frequently. Hold regular calls to discuss their preliminary opinions and to answer any questions that they may have. If the expert is not making sufficient progress, or if bills are higher than expected, promptly advise the expert.

Keywords: litigation, corporate counsel, expert witnesses, expert fees

Lynn S. McCreary is senior vice-president and deputy general counsel at Fiserv, Inc. David R. Singh is a senior associate at Weil, Gotshal & Manges in New York, New York.

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