When you take an expert witness assignment, it’s important to understand your specific role in the engagement. For instance, is the attorney intending to use you as a consulting expert or a testifying expert? Who are the other members of the team? What specifically are you covering and how does it fit into the bigger story?
Not all attorneys use consulting experts, but some find them very valuable. Attorney William Shawn explains:
I use [experts] in two ways. I do not see a lot written about this, but we have testifying experts and consulting experts. I am a great believer in consulting experts. The benefits of a consulting expert are that their work, and their work product, are protected by attorney work product and client privilege. There are no disclosure requirements that otherwise exist under Rule 26 of the Federal Rules of Civil Procedure. They are usually the people that we like to use who roll up their sleeves, dig in and do a terrific amount of, shall we say, homework and […] spadework. We are working on a major international financial case right now, and we just had a long Zoom with one of these consulting [experts] who has clarified this complex financial system but would not be a great testifying expert.
When we look at testifying experts, we look for people who are going to connect with the jury and hopefully also connect with the judge. When that connection occurs with a testifying expert, it is a thing of beauty and I have had instances where a testifying expert spent hours instructing the jury on the ultimate issues in the case. In one episode, even the judge was asking the expert questions. It was an IP case about trade dress–type issues. When we choose a testifying expert, we want somebody who has that kind of rapport, communication ability, and has a degree of humility to be able to connect with the jury. We have had good ones and we have had bad ones. We had one in a federal jury trial in California in a patent case who was a former head of the Patent Office and he was so busy with other things and highly uninvolved that he did not even know the name of my second chair who was taking him on direct examination. It was embarrassing. So, suffice to say, we never used him again. The other thing that we find with testifying experts is that the reports are critical and many of them need a lot of help doing their expert reports, especially in a damages case. Once again, it is key to find that right person, that right personality, that right bearing that is going to play well with the jury. That is difficult on the outside of the case to figure out. How is that going to be? We do like to engage our experts as early as possible to be able to bring them along. That’s why having a consulting expert can be so helpful.
Expert Dr. Michael Einhorn explains what work is like as a consulting expert:
Acting as a non-testifying in-house economist at the Department of Justice [allowed] me to work with lawyers where our communications were protected. It is here possible to have detailed conversations with lawyers and parties, hear the ups and downs of the particular case, and offer insights that are not discoverable in a court. The Department of Justice often uses inside work and then proceeds to hire outside counsel to testify to the soundness of its argument. The DOJ economists often stayed off the witness stand and therefore could maintain privilege.
Beyond whether or not you will testify, an expert also needs to make sure that they understand where they fit in with the rest of the team and what they’re supposed to do. If an expert doesn’t do what’s expected, trouble may ensue. Expert Craig Schlumbohm recalls one such situation:
Often, experts from different companies come together to represent the same client. They each have separate expertise. […] We were involved in a case where we had multiple experts from multiple companies, and it was a linchpin of the case. There was an expert that spoke to one scientific topic. In his deposition, and this was an arbitration case, an […] expert said some things that we had not heard from him before. After many meetings and conversations regarding aspects related to a building for the first time, he started talking about different components. There were structural issues on a building, and we had heard him say things about maybe this was a problem. It beat us up as an expert team because we are all sitting back and had to recover because of that one. I was dealing with some of the architectural issues and the cost of repair, and suddenly my foundation fell apart because the building foundation fell apart because of the way case the case went on from there. We had different experts on structure, windows, and roofs, it shot the whole thing out of the water because we had an expert that, for whatever reason, went a different direction.
It’s important for the team to work together on testing their most important arguments. If the attorneys are too dependent on a flawed theory, bad things can happen. Expert David Harkavy recalls:
The attorneys wanted me to put forward a very large lost profits opinion. I explained and asked them to tell me a little bit about the facts that support causation, and they explained to me, ‘Well, we have got a fact witness for the plaintiff. He is going to testify on causation factors.’ I said, ‘OK, tell me a little bit about that.’ The lawyers explained it to me and asked me to assume causation. When we get to trial, and the day before I was scheduled to testify on lost profits, the plaintiff’s fact witness on causation melted down at trial and was not adequately able to support causation. Meaning that it was not the defendant’s actions that caused the lost profits. It was other factors. So, even before I testified on lost profits, counsel withdrew my loss profits opinions, and I testified only on a few small other components of my damages opinions. I can tell you the client and the judge were very upset with our team because they were expecting a very large lost profits damage opinion to be at trial and it was not there because we did not have sufficient evidence on causation. That was a tough pill to swallow for all of us because I felt we were all in together and we just did not meet the criteria. Therefore, my lost profits opinions were not presented at trial.
Role clarity lays the groundwork for a successful engagement, telling each team member what you should and should not do. Take the time with counsel to discuss specifically how they envision your role and how it fits into the bigger picture, what their expectations are for you, and how discovery rules may affect your communication.
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!