We recently discussed the importance of ensuring your expert witness knows his or her role in the story you are telling the court. Additionally, some attorneys find experts can play key roles in writing the story.
Dr. Christian E. Mammen, of Womble Bond Dickinson, tries to engage with experts early on:
I would say that, particularly in patent litigation, experts are critically important. They are important to help us lay lawyers or nonscientific lawyers understand the technology, and to develop theories of the case. It is important early on to get those experts involved and to begin working with them right away.
Many attorneys will bounce various theories off of their experts, and generally see how they react to the story the other side is telling. Expert Steve Haas recalls:
I worked on a case where there was an accusation of financial impropriety against a brand accused of financial maneuvering inconsistent with industry reporting standards and best practices. […] During my first conversation, they asked, ‘What do you think of it?’ I said, ‘Someone with no understanding of how retail works wrote this complaint. Every brand and retailer do these things.’
It is easy to get tangled up when you do not understand the inner workings of this field. It helped me understand my value is not that I have any detailed insight gained from having a higher intellect. It is from having done a job for many years and being able to say this is how this works and explain the financial relationship and competitive motivations behind that behavior and why people do or do not do it. It was an epiphany that I do not have to shine a light on an obscure fact. My industry knowledge is valuable to people trying to assess what happened.
Not discussing the story being developed and how it affects the matters on which the expert is to opine can have serious repercussions. Expert David Harkavy remembers one such failure:
There is a common saying among damages experts [is that] damages flow from the legal claims at issue in a case… [One thing] I recommend new, inexperienced damages experts do is to have a conversation with counsel early on about the remedies you are going to consider and perform for the preparation of your expert report, and which remedies fall under which claims.
I recall the day before I was supposed to testify for my second deposition, counsel came into the conference room, sat down, and said, ‘We have a problem.’ I said, ‘What?’ He said, ‘You calculated an unjust enrichment amount and we do not have an unjust enrichment claim in the case.’ I said, ‘O.K.’ And he said, ‘Well, we need you to say at your deposition that we will put in an unjust enrichment claim so that your unjust enrichment calculation can stay in the case.’ I am about to testify in deposition, and I was anxious, and I am thinking, ‘We do not have a legal claim for the remedy that I put forward because it was a breach of contract case.’ At the time you could not put forward an unjust enrichment calculation under a breach of contract.
My tip for both counsel and the damages expert is to have that conversation early. If there is one claim or count or multiple claims, make sure that the damages and remedies that the expert is going to put forward in his or her expert report are tied to the legal claims of the case.
Working with your experts to develop the story keeps everyone on the same page, helps ensure you have the most supportable case, and benefits experts, attorneys, and your client.
Round Table Group is here to help you persuasively explain your client’s story. 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.