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Expert Case Evaluation: Helping to Create the Story

November 8, 2023
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You’ve been hired, have set up the project, know how communications will happen with the attorney, and finally case information is coming your way! As you read through it, thoughts on the matter occur to you. Which ones should you share with the attorney? 

Addressing the Issues at Hand 

Attorney Stephen Embry highly values experts who help him craft his story of the case: 

A good expert will be a team player with the lawyer on the case, tell the truth, and look for solutions. One of the best experts I have ever had was a fire scientist. If there was a problem in the case, he would say, ‘Maybe we can approach it this way.’ Then, he would try to come up with a way around it and deal with it in a way that would be persuasive from our standpoint. […] It is like everything else in life. You can either say, ‘There are problems, and there is nothing we can do about it,’ or you can say, ‘There are problems, but let’s look for a solution.’ 

Over his career as an expert, Dr. Eric Cole has realized that sharing his ideas, beyond even the various approaches to issues Embry suggested, is often helpful: 

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 [initially] 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. 

Like Cole, Dennis McAllister shares the issues he finds when he goes through the case materials: 

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 the expert does 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. 

Harness Your Knowledge to Foster New Theories 

 As well as sharing issues, some attorneys turn to experts to assist in building the initial theories. Dr. Christian Mammen shares: 

I would say that, particularly in patent litigation, generally, 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. 

Exposing the Opposition’s Pitfalls 

Occasionally when you are reviewing the materials, like Steve Haas below, your experience may point out issues on the other side’s story: 

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. Before my initial conversation with Council, I read they provided their rebuttal to the complaint. 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. 

While you never know exactly what an attorney may need or want from you, sharing your ideas in a thoughtful way after reviewing the documentation is often helpful. After all, the attorney hired you to be part of their team. 

If you are interested in being considered for expert witness gigs, consider signing up with Round Table Group. For nearly 30 years, we have helped litigators locate, evaluate, and employ the best and most qualified expert witnesses. Contact us at 202-908-4500 for more information or sign up now! 

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