Rules change constantly, including the rules surrounding what types of communication are privileged between an attorney and an expert… and these rules can be different depending on the jurisdiction. As an expert, you need to make sure your attorney tells you the rules before you get into trouble. Expert Charles Ehrlich shares a couple of experiences:
[…] Several states have adopted Federal Rule 26, but not everyone. You get into a situation where the lawyer starts talking about the case and you start taking a lot of notes. You start putting a lot of question marks. What about this and what about that? That may be discoverable and even worse. As soon as you are retained, you want to show how smart you are. So, you write a long email about here is what I think about the case. Well, if it is not a Rule 26 jurisdiction, everything you said is now discoverable. A lawyer told me about a time he had to get another expert. He found a great expert and that is exactly what his expert did. He got onto the email, wrote, ‘Here is what I think is great about the case, but I think that this might be a problem and that might be a problem.’ So, the lawyer, after deciding not to jump off a bridge, had to get rid of this expert and find another one.
Another story I was told was where the expert wrote very disparaging things about the law school which the opposing expert had attended. The problem was it was [also] the judge’s law school. Again, not a Rule 26 jurisdiction. Mutual embarrassment. I have learned that at the absolute start of any discussion with a lawyer to say, ‘What are the confidentiality rules governing our discussion here?’ Sometimes they say, ‘Oh, guys, I had not thought about that.’
So, care must be taken, but at the same time communication is key. Brian Weinthal, formerly a partner at Burke, Warren, MacKay & Serritella, explains:
We cannot silo them. The new federal rules give more freedom for attorneys to speak and converse with experts than when I started [working] with [Round Table Group]. It used to be that any document, any wisp of anything you had, immediately had to be turned over to an expert and the other side. There is more freedom [now] for attorneys to communicate with experts about theory and what their actual views of a case are. If you are not maximizing your time with an expert, to explain to them their role, you are letting the best opportunity to sell a persuasive part of your case go by.
Dr. Michael A. Einhorn makes the argument from the expert’s point of view. You need to know how you can speak candidly to an attorney:
It is very important to me to make sure that our communications are protected as much as possible. That allows me to tell the client when I think of a particular argument, where I think it can be trouble down the road. This complication may not seem like the easiest thing to hear at the beginning, but it’s something you need to know when the motions start coming in. Before taking a retainer, I try to review the complaint in public information to let the attorney know everything I see as early as I see it.
Your role in the litigation team also may impact the rules around privilege. Attorney H. Bernard Tisdale notes:
We are going to be taking it in the context of trying to take into account the work product doctrine along with attorney-client privilege. Keep in mind are you going to want this expert at some point to testify for you, or not. There is a procedure and practices that you can take advantage of for someone to be a non-testifying expert. You are going to follow many of the same processes concerning engagement and it is more on the attorney side on how to handle it there within a piece of litigation, so the best practices we are going to talk about would apply to testifying, or non-testifying. It is good for the attorney and the expert to know the result.
Tisdale also notes some of the strategy surrounding privilege and the scope of documentation:
Another big issue is going to be what kind of documents the expert needs to create. Granted, experts evaluating or reviewing a bunch of documents, or examining the piece of machinery, a widget maker, are you going to have to prepare a report? The expert and the attorney need to talk about when exactly a report is needed and when it is prepared. Sometimes […] the case is settled. You don’t need a report. You do not need to pay for it. It also minimizes what might get discovered should the attorney-client privilege or work product doctrine privilege get pierced by a court at some point. If you’ve already prepared a report, then it gets discovered. Talk about it in terms of if the expert is going to have access to, say, original data or the widget-maker that failed. You do not want your expert acting without the attorney’s knowledge. In a lot of situations, you need to understand what the expert is doing, so that the expert does not take action you do not know about or need to talk to others about. Keep open communication every step of the way.
A third point Tisdale makes is that some documents experts may not even think about in terms of privilege still need to take it into consideration:
Billing is also important. Once again, you’re trying to maintain that attorney-client communication. Billing is sent to the attorney with the understanding it can be addressed to the client for payment. That way you are filtering it through the attorney to protect the communication because a lot of bills are going to have time entries and descriptions of activities. All of those activities are done for the attorney providing advice.
Knowing the ground rules around communication and work product can save everyone a lot of headaches. Expert Pete Fowler explains his rookie mistake:
It is so great that I only learn things the hard way. So, I got that out of my system early by working 80-hour weeks. I remember like it was yesterday. I had sent a client a two-page memo saying for us to do our work, you need to send us all these documents. It would have cost the client $10,000 to send us all these documents for a relatively small case. The client happened to be a superstar young lawyer, who was not much older than me and I was not even 30 at the time. He called my boss and said, ‘Who is Pete Fowler?’ My boss said, ‘He is a bright young kid who came to work with me. He is killing it.’ The lawyer said, ‘Fire him now! If this case goes to trial and my client loses and I have not sent you every one of those documents, I am going to get sued for malpractice.’ I realized that was a good piece of information. Now when my clients say do not put anything in writing, we understand and train all of our staff what they mean is do not put anything stupid in writing.
If you are interested in being considered for expert witness gigs, sign up with Round Table Group. For nearly 30 years, we have helped litigators locate, evaluate, and employ the best and most qualified expert witnesses, starting with those we already know. Contact us at 202-908-4500 for more information or sign up as an expert.