The Role of the Expert Witness: Finding & Filling the Holes in the Narrative
Experts are integral in many aspects of a case, including, sometimes, determining if you even have one!
Before you get deep into working on a case, you should consider talking to experts in the fields at issue. Expert Timothy Fort explains that good attorneys typically want the expert’s honest opinion about their case, “There’s a way we would like for this to go — we would like you to be supportive of our case — but if you don’t think we have a good case, we’d like to know now rather than later!”
Attorney H. Bernard Tisdale explains a way he minimizes potential discoverability risk of getting this kind of advice. He states, “I try to hire the best experts who are going to tell me if my theory holds water. If it doesn’t hold water, guess what? I am going to pay that expert and classify them as non-testifying. The other side is not getting it unless they have developed some type of information that cannot be duplicated.”
Equally important, experts can help evaluate the strength of the other side’s theory as well. Expert Dr. Steven Feinberg recalls a matter in which discussing the case with an additional outside expert helped the defense determine its best move:
I do a lot of complex regional pain syndrome cases, and this was a case of a young man in his late teens who had been hit on a bicycle by a car, and the defense had hired a neurologist who said he examined him and said he didn’t have CRPS. This young man was being treated at Stanford, where I am on the faculty. I had never seen him, but we had multiple Stanford and other doctors saying that he did have CRPS. I looked at the neurologist’s report and said his exam supported that diagnosis. In this case the defense attorney, for some reason, was worried about the case and asked me to kind of be the behind-the-scenes guy. I evaluated, but never saw the young man, obviously, and I asked the attorney to drive down to my office […] because it is clear to me that this young man has CRPS, so you are going to get killed at trial. The expert witness on the plaintiff’s side is excellent, knows his or her business, and they settled the case that afternoon. The young man got a pretty good settlement, but from the defense point of view, they saved a lot of money.
It’s tempting not to want to know where the story you are working to create falls apart. As an attorney, you have spent hours, perhaps days, weeks, months, developing the narrative you want to tell the court. It is easy to dismiss anything that doesn’t fit into that narrative. Part of the role of the expert is to tell you where the holes are, as Dennis McAllister points out:
It took me a few cases to learn what is probably one of the most important things that I do now when I am working on a case as a retained expert to an attorney, is working for their client. Whether it be plaintiff or defense, when the case is new, an expert is sought out because many times there is a unique body of knowledge that the expert has that is not all that familiar to the attorney as they work their case in the early days. The pearl I learned was the expert has as much a responsibility to support the attorney’s case […] as to show the attorney where there are holes or omissions in their case. Those holes and omissions may make winning it more difficult or even impossible. It is a two-edged sword, and the experts, I like to call us Switzerland, we are neutral to the case. We describe what is going on in our area of expertise and then let the attorney drive across that fork in the road to wherever they want to go.
Learning about these “plot holes” in your story, and then focusing on them to determine if they are fillable or not is important in the matter. When holes go unevaluated, entire cases can unwind. Expert David Harkavy remembers one such incident:
We do get calls and we do go through those interviews with counsel, and we explain our work strategy or the way we perform our work, so counsel understands our approach. The last thing you want to do is to get into a situation where counsel has certain expectations that you cannot meet. I have been involved in those situations where the attorneys try to, early in the case say, ‘David, we are not thinking this. We are thinking over here.’ I am like, ‘Then you need to provide the evidence to support that.’
One of my cases where I testified at trial on damages fell apart quickly. […] The attorneys wanted me to put forward a very large lost profits opinion. I explained and asked them to tell me a little bit about the facts that support causation, and they explained to me, ‘Well, we have got a fact witness for the plaintiff. He is going to testify on causation factors.’ I said, ‘OK, tell me a little bit about that.’ The lawyers explained it to me and asked me to assume causation. When we got to trial, and the day before I was scheduled to testify on lost profits, the plaintiff’s fact witness on causation melted down at trial and was not adequately able to support causation. Meaning that it was not the defendant’s actions that caused the lost profits; it was other factors.
So, even before I testified on lost profits, counsel withdrew my loss profits opinions, and I testified only on a few small other components of my damages opinions […]the client and the judge were very upset with our team because they were expecting a very large lost profits damage opinion to be at trial and it was not there because we did not have sufficient evidence on causation. That was a tough pill to swallow for all of us because I felt we were all in together and we just did not meet the criteria.
Working together on filling in the holes and brainstorming alternatives make a big difference. When thinking back on what he’s learned in his time as an expert, Dr. Eric Cole notes:
I […] learned not to be afraid and to suggest alternative approaches. When an expert comes in, you are late regarding the attorney’s strategy. They know where they are going and how they want to approach it. So, I would say, ‘Okay, if that is the road you want me to go down. I will go.’
Today, I realize it is helpful to say, ‘Okay, I am fine with going down this road, but did you think of this road or that road?’ You end up getting some other options. The suggestion of alternate options happened in a case that went to trial, where I brought up a few additional infringement scenarios. It worked out because legal issues eliminated the original plan. If we did not have those backup scenarios, we would have been dead in the water. Those backup scenarios got us a favorable verdict for our clients, so it is always good to be creative and suggest other ideas.
Rather than attempting to hire an expert who unquestioningly supports your narrative, using a very qualified expert as a sounding board will often bring benefits to your end client. Tapping their expertise — not just to support your case, but also to evaluate your story — can be the best strategy for your client.
Round Table Group is here to help you persuasively explain your client’s story. We have over 25 years of experience helping litigators locate, evaluate, and employ the best and most qualified expert witnesses. Round Table Group is a great complement to any litigator’s quest for an expert witness and our search is always free of charge. Contact us at 202-908-4500 for more information or start your expert search now.