Michael Haugen 0000-00-00 00:00:00
Fact is there is a cost to retaining an expert witness. Whether it is an agricultural expert testifying to soil conditions, a physician testifying to injuries or a forensic accountant testifying to economic damages; as an attorney, you work with your client to determine who is needed to find the right answer and to build the strongest case possible. Part of that decision is the scope of an issue, relative to an entire case, that would benefit from retaining an expert witness. It is determining the value brought to the case by the expert and what it is worth. Once the decision is made to retain an expert witness, it is prudent to take advantage of everything he/she has to offer. The most critical step in retaining an expert witness is to select one with the proper expertise and qualifications. Subsequently, the next most beneficial step an attorney can take towards getting the most out of their expert is to retain him/her early on in the discovery process. This is not to say that without doing so the expert will not be able to form an opinion, or even that an opinion won’t be as strong if the expert is engaged late in the discovery process. The specifics of each case dictate the results. Yet, when the expert is not retained until the end of the discovery period or until right before their report is due, he/she cannot add their experience and expertise to the quest of obtaining all relevant documentation and information. The documentation and information produced in a case form the foundation for expert opinions. There are four areas where the expert can assist counsel in obtaining the maximum benefit from the discovery process including document production, interrogatories, depositions and research. Generally speaking, the earlier the expert is brought into the case, the more benefit they can provide to the attorney in these areas. Document production is often not a one-step process. With an understanding of the complaint and response/counter complaint, the expert can provide an initial list of potential parties with relevant records and the specific documentation to request. When the parties have responded to the initial request, the expert can review the production to determine if additional information and/or documentation should be requested that was not apparent until the initial response was produced and reviewed. A common occurrence is that some of the requested documents are either not produced or are not complete. These factors can lead to a follow-up document request which is usually targeted to very specific records. Since there is a built-in delay between the request for production and the response, the earlier the documents are requested, the more opportunity there is to make sure the scope of requests is appropriate. Interrogatories can be submitted at various times during the litigation process. In many cases, the number of interrogatories permitted is limited so it can be critical to make sure the most him/her to advise the attorney of key questions relevant to the field of expertise of the expert. While the attorney may elect not to ask specific questions, it is better to know what the expert might suggest in the way of questions than not to at least have the opportunity to submit such questions. Sometimes an expert is not retained until after depositions of key parties have been taken. Ideally, however, depositions of key parties are taken after the expert is retained and has had an opportunity to review records produced. The expert can then draft suggested deposition questions to assist an attorney with better understanding key issues to be discussed on the record. In doing so, the expert has an opportunity to verify and clarify information included in the production response and answers to interrogatories; that information then becoming a reference point for the expert in forming his/her opinion. The fourth area of the discovery process where the expert can be involved is in performing research. Experts perform research to develop information on key issues in their area of expertise. In some instances, the data that can be obtained through research is critical to issues in the case. Yet, research data is not always easy to find nor readily available. There are times, for example, where trade associations have significant relevant data which can be provided but which may take a period of time to obtain. Retaining the expert too late in the discovery process may limit the research options available. Four different areas of activity have been discussed in which the expert can provide value to the attorney during the discovery process. However, the most important input from the expert may be in the communication that often occurs between him/ her and the attorney. Many attorneys have a more or less continuous dialogue of the approach being used by the expert and a reconciliation of that methodology within the entire case strategy. Experts don’t work in isolation. Their opinions must fit within the legal framework of the case. Having time to communicate can be integral to the overall strength of a case and even the cost of your expert. Retaining the expert early in the litigation process will usually maximize their benefit to the retaining attorney. Retaining an expert late in a case limits the extent to which they can best provide those benefits.
Published by Target Market Media . View All Articles.