You know some of the things to consider, but just where can these "lords of the courtroom" be found?  The first place I'm going to tell you to look is your own backyard. In other words, there really isn't a better place to look than either to somebody you or your partners have used before.  But if you have an issue about which you must go outside your experience zone, check with people you've used before in other types of related litigation. 

Or, check somebody else's backyard, i.e., call a friend who practices in that area and see who they've used, or maybe who was used against them that worked out well.

Hope you find the tips useful and good luck with that case you're working on.

Author

Jeff Curran

Of Counsel, GableGotwals, Oklahoma City, OK

Co-Author with Kurt Meaders of Expert Witnesses: Motor Vehicle and Accident Reconstruction Cases

Hope you find the tips useful and good luck with that case you're working on.

Author

Jeff Curran

Of Counsel, GableGotwals, Oklahoma City, OK

Co-Author with Kurt Meaders of Expert Witnesses: Motor Vehicle and Accident Reconstruction Cases

You simply cannot properly or practically evaluate your case until you have decided if expert testimony is necessary and how it may be used.  You do not want to take a case only to learn months down the road that you need a certain kind of expert.  Also, your client is relying on you as counsel to explain the case to them and what to expect from the litigation process.  So, evaluate your case for expert witnesses as fully and completely as possible at the earliest available opportunity.  Easy to say, I know, and maybe not so easy to do.  And if you have budgetary restrictions to deal with (more on this later, but who doesn't have them?) such  issues present an additional problem.  But the bottom line is, the earlier you do it the better off you'll be.

Up next Tip 2, then...well, you get the picture.  More posts to come and good luck with that case you're working on.

Author

Jeff Curran

Of Counsel, GableGotwals, Oklahoma City, OK

Co-Author with Kurt Meaders of Expert Witnesses: Motor Vehicle and Accident Reconstruction Cases

Not every case needs an expert.  But most do, and if you're reading this them I'm guessing most of yours do.  So, follow along, and hopefully we can provide you with some useful information for the finding the right expert witness for your case.

   Tip 1: Begin your expert witness search as early as possible.

   Tip 2: Consider all the disciplines you may need to have covered by an expert.

   Tip 3: Consider your own/colleague's previous experience/litigation with an expert.

   Tip 4: Consider where you are (the venue) and who you are (you and your client) when determining  number and potential impact of different experts.

   Tip 5: What's your budget and how many experts can your case handle?

   Tip 6: Sources  Professional association meetings like the American Association for Justice (formerly ATLA) and the Defense Research Institute (DRI).

   Tip 7: Sources  Case and Jury Verdict Reports in print and on Westlaw.

   Tip 8: Sources  Websites and professional search services like the one that hosts this blog and others.

   Tip 9: Personally meet with the expert you are thinking about using (if possible). 

   Tip 10:  Make sure your potential expert knows what they are talking about

Stay tuned for future posts where I give you the "whys" and "wherefores" for each Top 10 Tip.  Until then.....

Author

Jeff Curran

Of Counsel, GableGotwals, Oklahoma City, OK

Co-Author with Kurt Meaders of Expert Witnesses: Motor Vehicle and Accident Reconstruction Cases

Recent revisions to the Federal Rules of Civil Procedure--effective December 1, 2010--raise important issues for litigators working with experts.  Perhaps most important is new Rule 26(a)(2)(C), which clarifies the need for additional specification in disclosing "expert" witnesses who might previously have remained undisclosed.  The Rules generally require (and have required) that retained experts and even company employees who routinely testify as experts need to prepare and disclose comprehensive pretrial reports, so that opposing counsel could review those reports and depose the experts intelligently about their opinions.  However, this category historically excluded company employees who did not routinely testify as experts.  The revision dictates that going forward such company employees must at least provide a summary of their expected testimony.  Treating physicians were another group of witnesses who sometimes fell through the cracks that this revision aims to close.

Note also that the revision raises an issue that previously had often lurked under the surface.  In many instances company employees involved in the matter might not even view themselves as providing "expert" testimony as opposed to simply providing factual testimony about the case.  However, especially in the kinds of complex, scientific litigation matters most often calling for experts, such an employee's testimony is indeed likely to qualify as "expert" testimony in the eyes of the court.  It therefore will be important to discuss early in the litigation with litigation counsel which employees might likely be qualified to give such blended factual and expert testimony, to be sure that their identities are properly and timely disclosed, and that at a minimum an appropriate summary of the subject matter, underlying facts, and opinions expected in such testimony is provided to the other side in compliance with new Rule 26(a)(2)(C).

The second major area of amendment concerns draft reports and attorney-expert communications as now governed by Rule 26(b)(4).  The prior Rules, in particular requiring the disclosure in the Rule 26(a)(2)(B) report of "the data or other information considered by the witness in forming" the opinions to be expressed, allowed significant pretrial discovery of draft reports as well as communications a testifying expert had with counsel.  In deposing testifying experts, opposing counsel have since almost always covered these two areas, sometimes in great detail requiring vast amounts of time, as the deposing attorneys probed for evidence that the supposedly neutral expert's opinion had been suggested or molded by opposing counsel.  Such discovery tactics resulted in experts and the counsel who retained them to take drastic and inefficient measures to avoid creating discoverable material, often spending many billable hours talking through ideas on the telephone instead of just exchanging written drafts.  Litigation counsel would also often recommend retaining two experts, one to testify and one to simply "consult" out of view and subject to much greater protections from discovery, so that counsel could bounce facts and ideas off of the consulting expert with reduced concern that they might become discoverable if disclosed to the testifying expert.  Such inefficiencies burden parties that can't afford two experts for every issue, and otherwise unnecessarily drain resources from all involved.

Some litigators thus began stipulating around the obligations to produce draft reports and/or communications between experts and counsel, reasoning that the expenses incurred in doing so rarely yielded a significant, case-breaking moment with which to impeach the expert either in the deposition or at trial.  The amendments to Rule 26(b)(4) (in particular at 26(b)(4)(B) and 26(b)(4)(C)) purport to severely restrict counsel's ability to extract such discovery concerning experts.  That said, they do not eliminate that ability entirely, and one wonders if the amendments the amendments give back with one hand what they have taken with the other by continuing to allow discovery of draft reports or attorney-client communications upon a showing of substantial need, and also freely permitting discovery of attorney-expert communications concerning (a) compensation, (b) facts or data considered by the witness in forming opinions, and (c) assumptions provided by counsel and relied upon by the expert.  In particular, item (c) threatens to become the exception that swallows the rule, as experienced and aggressive trial lawyers looking to undercut credibility will still likely test the limits of what it means for a communication to relate to an "assumption provided by counsel."  Lawyers who follow these issues can watch for the District Courts to be busy defining such boundaries in the near future.

Author

Damian D. Capozzola

Member, EpsteinBeckerGreen, Los Angeles, CA

Co-Author with Walter R. Lancaster of Expert Witnesses in Civil Trials: Effective Preparation and Presentation (Trial Practice Series)