Usually, the line between the role of the attorney and the role of the expert is obvious, but there are some points – perhaps based on type of expertise or the rules of the venue – where it can seem a little hazy.
One of the areas where it crops up frequently is insurance work. Expert Louis Fey explains:
When you do insurance expert work you run into a lot of fine lines between what is a legal conclusion and what is not. So, I guess if there is one thing that I wish I knew when I first started it was where that line is. I do not think I am ever going to figure out where that line is completely because it keeps moving. It is very dependent on the judge that is looking at the case. [However, over time] I have streamlined my thought process on where it is. I prevent myself from being dragged in by opposing counsel into opining on the law.
New experts often don’t really understand their role and rely on the attorneys to help them figure out what they can and can’t do. Looking back, Dr. Kantha Shelke identifies that as one of her previous pain points in becoming an expert:
I wish I knew 30 years ago that it is the expert witness who is the expert and not the law firm that is managing you, so, I would not feel nervous about asking for [additional] information […] Instead, I would try and see if I could fit in the information that was provided to me […] There are two things there. The law firm was trying to fit me into their case, and I was trying to fit the materials they gave me, hoping to make it fit. I now know that as an expert, it is our reputation that is very important, not only for our career, but also for the case. Learning how to ask for complete materials, clarifying every step of the way, being concise and precise in the areas we will testify on, is important.
When experts have all the information needed and understand where they fit in the case, then it is important for the attorney to let the expert provide the venue with the fruits of their work. Attorney Andrew B. Lustigman understands the temptation to step in, and warns against it:
In the NAD (National Advertising Division) context, I think it is even more important because you know the hearing officers who are advertising attorneys. They are smart, and they understand the law. What they need to know is who is right on the science and why. It is of paramount importance that your expert is involved in the process, and when you have your hearing, they explain the science and answer hearing officers’ questions. In other words, if the hearing officer will ask, as they always do, questions about what the expert’s points are or what the other side’s expert points are, it is important, not that the lawyer answer those, but you allow your expert to answer those candidly. […] You are rarely going to go into a NAD case without your experts and be successful. You need to have your experts lined up, prepared and ready to talk. Many times, there are multiple experts in a case to cover various subject matters proficiently. The NAD wants to hear from the experts, frankly, more than the lawyers. They help each other.
The ideal situation is one where the attorney and expert fit together perfectly. They know their roles and responsibilities, and they address those issues with conviction. Help your expert understand where that line is in your case, what information they may have access to, and then, after proper preparation, let them provide their knowledge to the venue.
And, make sure you have the right expert to start with! For over 25 years, we have helped 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