Every industry has been forced to re-examine their processes and adjust business models in order to adapt to the impact of COVID-19. The legal world is no different, as the pandemic has provided an unavoidable lesson to many law firms regarding the retention of experts during a large scale and transformative event. COVID-19 has proven to be a monumental example; however, these events can come in the form of hurricanes, droughts, and even severe failures in technology.
How can law firms prepare for expected litigation by lining up experts before a specific matter arises? Our experience working with legal teams on a diverse range of matters has informed our approach to expert retention in the aftermath of heavily disruptive crises.
It is helpful for legal teams to reframe the way they view retentions in the pre-litigation phase. As parties are not yet involved, consider these experts as consultants and not necessarily expert witnesses. While it is possible that the consultant’s role will evolve into that of an expert witness, initially they can offer a deep reservoir of knowledge to outside counsel and their clients as they assist the team in determining overall exposure risks and discuss ways to mitigate them as events unfold.
When specific matters emerge, regular communication with consulting experts is key. Part of these discussions should include the experts remaining current with their conflict checking processes and procedures. Locking experts in early, however, has the additional benefit of keeping them from working on opposing sides and making those conflict checks a little easier. Many of the most relevant experts are in high demand, as large-scale events lead to a spike in the need for their specialized knowledge and experience. It is also more economical, as you are working ahead of the standard expert retention curve. For these reasons, early retention makes a lot of sense for many legal teams.
Our work with attorneys in similar situations, including our recent work assisting clients with Covid-19 related expert witness searches, encompasses assembling disaster-related advisory teams. These teams are dedicated to the evaluation of incoming cases and can potentially be marketed as an added value to potential clients.
If you already have a client when building an advisory team, their input is essential when it comes to choosing which areas of expertise need to be represented within the group and which specific experts are the best fit. The client will then be comfortable with the expert, and the expert team will be highly focused on your client’s most likely litigation risks.
Alternatively, attorneys may position this preemptive approach without the existence of a client as a marketing tool. If this is the case, it is critical to decide how this expert will be compensated for their time prior to starting the search. Once an expert is hired, then the law firm can use the expert’s knowledge as part of the package they present to clients to highlight the firm’s deep resources available in the given practice area.
Early expert retention is not without its risks that must be thoroughly considered. If a legal team decides that it is worthwhile to retain an expert as a consultant prior to the existence of a specific client or legal matter, there is a chance that the expert might not actually remain with the team when litigation occurs. Perhaps this expert has conflicts that were not clear at the outset due to the lack of party information, or maybe their previous experience isn’t a perfect match for the eventual matter that does arise. Whatever the reason, this results in the need for additional expert searches later in the process.
Large scale events are unavoidable, unpredictable, and transformative in nature. Despite the list of challenges that they present, there are ways to remain proactive and position your legal team for eventual success litigating matters in their aftermath. As these issues arise, keep in mind that experts may be unusually busy during these events. When interviewing them and considering their retention, try to avoid taking up too much of their time by focusing on the most important aspects of their expertise for your particular need. Try not to get too granular, saving the less important questions for later when their expertise is not needed to handle life-and-death aspects of the crisis.
If you’re considering the retention of an expert or the assembling of an advisory team, please be aware that Round Table Group has launched a COVID-19 Practice Group, which includes experts in healthcare, logistics, liability, economics, employer liability, insurance, and many other areas of expertise relevant to current and future litigation related to the pandemic. Please also feel free to call us at (202) 908-4500.
Litigation is the process of legal action between two opposing parties who are working to enforce or defend a legal right. In most cases, the parties settle out of court by negotiating an agreement. Some cases go to court, where a judge or jury hear both side’s argument and determine how the case is settled.