Advice for Young Lawyers: Becoming an Expert on Experts
By George Abele and Adam Reich – April 16, 2013
Common sense dictates that the evidence you present at trial will affect the trial outcome. But, the trier of fact must understand your evidence before it can be persuaded by such evidence. The source of evidence and accompanying testimony usually are paramount to swaying the trier of fact. Indeed, it has long been acknowledged that “[a]n intelligent evaluation of facts is often difficult or impossible without the application of some scientific, technical, or other specialized knowledge.” Fed. R. Evid. 702, 1972 Adv. Comm. Notes. Accordingly, trial lawyers often retain expert witnesses to bolster their cases.
Recognizing When an Expert Is Necessary
Generally, an expert witness should be retained when a reasonable trier of fact would not possess the requisite skill set for understanding the subject material. Fed. R. Evid. 702 (indicating that an expert witness is useful in situations where a person with specialized “knowledge, skill, experience, training, or education” can apply that “scientific, technical, or other specialized knowledge [to] help the trier of fact to understand the evidence or to determine a fact in issue”). Put differently, you should retain an expert if either advanced schooling or dedicated work experience resulting in an extraordinary level of knowledge is necessary to comprehend the facts at issue.
Thus, an economist with an advanced understanding of the present and future value of money might be an appropriate expert for a claim involving lost wages, a complex breach-of-contract case, or a judgment-collection action. A neurologist who can explain both the immediate and lasting impacts of trauma on the brain might be a suitable expert for a personal injury or a product-liability case. A person who dedicates his or her life to studying one particular aspect of a foreign country and frequently travels there may be a valuable expert for an asylum case. The key step for lawyers is to analyze the facts you hope to present and, early in your case, determine whether someone with specialized knowledge could assist the trier of fact in understanding those facts or the context in which they will be presented.
Tools for Locating Potential Experts
Determining that you need an expert may not be as difficult as locating one for your specific issue. As former President Franklin Delano Roosevelt once recognized, “[t]here are as many opinions as there are experts.” How do you find an expert? Bar associations are good sources of information regarding expert witnesses. The American Bar Association’s Section of Litigation, for example, has a committee on Expert Witnesses, and some local bar associations, such as the Los Angeles County Bar Association, may produce directories of experts in your area. Alternatively, JurisPro publishes a free online expert witness directory, and the ABA Journal’s Blawg Directory may direct you to potentially worthwhile expert-witness blogs. Also worthy of consideration are the numerous industry associations, many of which publish their own directories. Universities, research institutions, and think tanks also provide fertile ground for locating an expert. But perhaps the best source, especially for young attorneys working in law firms, is to ask your colleagues for recommendations or to check with firm administrators about whether your firm maintains its own internal directory of experts.
Finding the “Right” Expert
As you consider various sources for locating an expert witness, you must determine what attributes are necessary for your particular case. Generally speaking, an ideal expert will have an impressive background, including advanced schooling, extensive experience in the subject area, a history of relevant publications, or proven research skills. A mistake in this regard can be fatal to your case. For example, if you retain a “survey expert” to survey thousands of potential class members but his or her CV contains no mention of survey experience, the credibility of the expert’s testimony and any report he or she produces may be irreparably damaged. An appropriate background is just the first step. The “right” expert witness also must be personable and capable of providing understandable testimony. A witness who is too academic may not be an effective communicator or may be received poorly by jurors. Hence, it is critical that you meet in person with all prospective expert witnesses to determine how they may be received by others.
Compensating Your Expert
Payment agreements with your expert should be worked out in your engagement letter. As your client is the party ultimately responsible for compensating the expert, the client should approve the expert you wish to retain and the corresponding fee. Indeed, it is imperative that you consult with your client about expert compensation. While you may want the “Ferrari expert,” the client may only be willing to pay for the “Honda expert.”
Once your client signs off on an expert, you need to determine payment structure. There is no uniform expert payment schedule, as this varies depending on the expert and the scope of work. Often, experts require retainer fees. The remainder of the agreed-to compensation may be delivered via installments or upon delivery of the final work product. Alternatively, some experts are paid on an hourly basis. In these situations, you should include an estimated total of fees and costs in your engagement letter and leave it subject to amendment if necessary.
Communicating with Your Expert
Lawyers must be careful when communicating with experts, as such communications do not have absolute immunity from discovery. Rule 26(b)(4)(C) of the Federal Rules of Civil Procedure delineates three exceptions to the general protections afforded to communications between an attorney and an expert retained to prepare for and testify at trial: (i) communications relating to the expert’s compensation; (ii) communications identifying facts or data provided by the attorney, which the expert relied on in forming any opinions expressed; and (iii) communications identifying assumptions by the attorney, which the expert relied on in forming opinions expressed. These exceptions extend beyond written communications and include oral communications and electronic communications. See Fed. R. Civ. P. 26, 2010 Adv. Comm. Notes (noting that Rule 26(b)(4)(C)’s protections are meant to extend to all attorney-expert communications, “regardless of the form . . . whether oral, written, electronic, or otherwise.”).
The first exception “extends to all compensation for the study and testimony provided in relation to the action.” Consequently, attorney-expert communications regarding bonus compensation for a desirable trial outcome are discoverable as are communications about compensation for any person or organization associated with the expert. The second exception is not construed as broadly as the first; communications about fact or data relevancy or importance are not discoverable when they are separate from communications “identifying facts and data.” Meanwhile, because the third exception is restricted to assumptions communicated by the attorney that the expert relied on (e.g., a directive to “assume the truth of certain testimony”), this exception does not extend to “[m]ore general attorney-expert discussions about hypotheticals. . . .”
Because attorney-expert communications are not completely shielded from discovery, lawyers must be mindful when communicating with experts. At the outset of the relationship, you should provide your expert with a neutral description of the case and sufficient background materials to understand the crux of the matter, including the underlying complaint, answer, other pertinent pleadings, relevant deposition transcripts, and all relevant data. As communications “identifying facts or data” are discoverable, it is good practice to include no text other than “see attached” in all correspondence to your expert that includes such data. Fed. R. Civ. P. 26(b)(4)(C)(ii). Adherence to this strategy will protect your mental impressions from discovery. Additionally, to protect the integrity and credibility of your expert, you should not set forth in an engagement letter or state in any communication what conclusion the expert should reach. On the other hand, it is appropriate and advisable to tell your expert what issues you would like analyzed and what you are hoping to argue through expert testimony. A good expert will help you understand whether the facts and data support your theories.
Helping Your Expert Produce Satisfactory Work Product
Like lawyers preparing legal briefs, expert witnesses typically produce several drafts before arriving at a final report. Prior to 2010, courts considered draft reports of testifying expert witnesses discoverable, but the Federal Rules of Civil Procedure were amended in 2010 to afford expanded, albeit qualified, work-product protection to drafts of any report or disclosure required from testifying expert witnesses under Rule 26(a)(2). Fed. R. Civ. P. 26(b)(4)(B) (“Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.”) (emphasis added); see also Fed. R. Civ. P. 26, 2010 Adv. Comm. Notes. Though draft reports are now generally insulated from discovery, it may not be in the client’s best financial interest for an expert witness to prepare multiple drafts before producing satisfactory work product.There are several keys to timely obtaining satisfactory work product from your expert. First, as previously discussed, you must provide the expert with all necessary underlying information. Second, you should frame discussions with your expert to convey your strategies and what you hope to convey to the trier of fact. Third, you should help your expert choose phrasing for a report to make it understandable. When doing this, however, proceed cautiously as you should not alter the underlying content or conclusions. Fourth, you should evaluate expert work product from the shoes of your adversary and identify any methodological concerns or unsupported conclusions.
If the expert delivers wholly inadequate work product, it is important that you effectively communicate the shortfalls. During such conversations, you should inquire as to whether different experts might reach another conclusion and how that might happen. You also should discuss alternative methodologies because this will reveal if the expert’s conclusion is fungible. Furthermore, because experts are not always proficient in the law, you should explain the elements of the causes of action in your case so that the expert understands the context in which the report or testimony will be provided.
Preparing Your Expert for Trial
When preparing your expert to testify at trial, as with any witness, you must prepare your expert for all possible attacks. To that end, you should confirm that the expert understands all elements of every legal issue to which the expert’s testimony applies. Second, you should ferret out any potential bias that the expert may have and devise solutions for addressing that perception. For example, if your expert has previously testified in 50 trials on the same issue but always for the defense, you should prepare your witness to rebuff bias allegations on cross-examination by stating, to the extent it is true, that the expert has never been asked to testify by a plaintiff or the expert’s conclusions reached would not change even though the expert had been asked to testify by a plaintiff. Third, your expert must be prepared to validate his or her expertise/background and justify the methodology employed and conclusions reached. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 570, 589–95 (1993) (discussing importance of methodology used by scientific experts; whether it has been subjected to peer review and published; has a low error rate; and has been generally accepted in the field); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147–49 (1999) (indicating that the Daubert factors apply to all experts). Fourth, and perhaps most importantly, your expert must be prepared to answer how changed assumptions will impact the expert’s analysis. Because varying the assumptions used is a key aspect of an expert’s cross-examination, the expert’s understanding of the underlying theories becomes all the more critical.
The Conclusion of the Expert Relationship
Generally, the expert relationship concludes once the case is resolved through trial or settlement. There is no need to continue the relationship through appellate practice. After this point, you should confirm with the expert that all applicable fees have been paid in full and remind the expert to contact you before destroying any files relevant to your case.
Young lawyers must not overlook the importance of effective communication with experts. Retained experts must understand the legal context of the claims at issue, the strategies and hopes of the attorneys who retained them, and where they fit within those strategies. Young lawyers also must be able to brainstorm with experts how their work can be performed differently or more effectively and how it might be challenged. Further, as all expert reports will be reviewed by attorneys and their clients, it is vital that young lawyers effectively communicate and help experts manage court-imposed and internal deadlines. The “right” expert witness can make the difference at trial, but inadequate communication, preparation, and/or deadline management may vitiate his or her effectiveness. Applying the principles discussed in this article may help young lawyers avoid such perilous results.
Keywords: litigation, young lawyers, expert witness, FRCP 24(b)(4)(C), FRE 702