Working Together: Expert Witnesses on Teams
By Noah Bolmer
Expert witnesses will often find themselves working as part of a larger trial team. These run the gamut in size, composition, and degree to which members collaborate. On Engaging Experts, we’ve asked our guests about their trial team experiences:
An Expert Sandwich
Trial teams can come together in layers, according to vocational expert Merrill Cohen:
[T]here could be three, four, or five attorneys that I talked to on the case. That’s typical. As far as other experts, I’m in the middle of the expert sandwich in my field. The bottom—or first piece of bread—is the medical. They’re going to lay the foundation for my vocational opinions or a lifecare plan. Then, I’m the filling on the sandwich, and the top piece of bread is the economist. They are going to take my numbers, crunch them up, and give them that one beautiful number that represents damages. [. . .] I only talk to doctors if their reports do not specify some of the things that I need—if I need clarification or something along those lines. Unfortunately, I only talk to economists—and this happens often—when we’re all up against the deadline. They have the same deadline as I do, so I have to get my work to them so they can get theirs out. I’m frantically trying to get there so I can give them my numbers while I’m still writing the narrative report. It’s like, “here’s what I think you [need for] your report while I do my report.” There’s definitely some collaboration there.
These deadlines within deadlines highlight the need for good time management during collaborative engagements. When one expert builds off of the others, it is important that attorneys have all their experts in place to avoid delays and repeating the same work. She continues:
Each expert has their own report, but they’re utilizing the reports of the other experts. I’m building my report on the medical foundation, and the economist is building their report on my report. […] That said, some lawyers don’t get that, and they have hired an economist first, who does a report with basically some assumptions that the lawyer gives them. Then they realize, “I need a [vocational] expert—the other side has a [vocational] expert.” Then I do my piece that considers mitigating earnings and then the economist has to redo their report because we’re not saying the same thing. By the same token, I’ve had cases where I’m rebutting an economist because, let’s say, a plaintiff hires an economist and tells the economist, “Here’s all the documentation for what this guy earned—and he’s never going to work again. Give me the loss.” No economist can evaluate whether or not there’s some mitigation possible or there’re other earnings he would be capable of. The defense hires me essentially to challenge that assumption that they’re never going to work again. No, maybe they can’t do X, but they can do Y & Z, and this is what those jobs pay. Those are some examples of the interplay between the experts.
Limits to Collaboration
In contrast, many attorneys prefer to limit the degree to which experts work together to help prevent them from influencing each other. Compensation expert Garth Gartrell explains:
It’s largely compartmentalized, but not entirely. There are certain things I need to know about […] so that I can do my job. Sometimes it’s helpful to see how my own compensation valuation fits within the business valuation—so there’s some linkage. That being said […] I believe the lawyers want you to largely stand independently of the other consultants, so there’s not [much] coordination. Again, I need to understand what it is they’re trying to accomplish so that I can give them the perspective that they’re looking for. Counsel wants you to say, by and large, that you’re independent and unaffected by the opinions rendered by [the] other experts. In those instances where there are seven or eight other consultants on various other issues, I’ll have virtually no communication with most, and very limited conversation with some.
Finance expert Don Keysser agrees, lamenting:
Unfortunately, in most cases, it’s cordoned off. If there are other experts involved, I’m not even encouraged to communicate with them. Typically, they are in a different area of this case. For example, they may be tax experts. I’m not a tax expert. […] I’m not sure if the attorneys are fearful of a cross-pollination of ideas. I’m not sure why they say that, but I almost never coordinate with other experts. I do try to coordinate with the [non-expert] key members of the team, and one person usually drives that team; I try to make sure I coordinate with him or her closely. There might be a couple of subordinates who are also involved in the case who might prep me. I try to reach out to the entire team, but I don’t usually talk with other experts, which sometimes is frustrating because I want to.
An Attorney’s Perspective
Attorney and malpractice expert Erik Groothuis explains some of the interactions experts might expect in trial teams:
It is not unusual for experts to interact with each other during an engagement in circumstances where one expert’s opinion depends on the other’s. An example of this would be an expert who opines on damages might rely on another expert who is opining on some issue of liability (“assuming Expert X’s conclusions are true, the damages would be Y”). We would put the experts together during the report drafting process to make sure they are aligned, and each understands what the other is doing. Their interactions will be supervised by counsel to maintain privilege. I may have mentioned a legal malpractice case I handled recently for GLG where the underlying case involved claims against the owners of an art gallery. The attorneys who retained me also retained an art law expert, and I referenced her opinions in mine (though I did not interact with her in that matter).
It would be very common for experts to interact with the litigation team, especially during the runup to trial. Conducting a trial is like putting on a show, and all the different players have to work with each other (attorneys, experts, paralegals, techs, etc.) to make it work.
Communications
Besides influence, attorneys might limit intrateam communication due to privilege. Each venue has its own discovery rules, and it is vital that experts and attorneys are on the same page. Real estate expert Michael Maxwell explains:
In terms of teams, every project is different. I’ll give you an example. I’m working with several attorneys presently on a dispute between a purchaser and a buyer. It’s an after-the-fact dispute occurring long after the property had closed. The team consists of two attorneys—because you must remember that everything is discoverable—so we must be careful in how we structure our communications. If I send notes off to a group of assistants and ask them to do something, that’s going to be discoverable. Whereas the telephone call that I have with them is not discoverable. If they ask, “Do you have any notes?” I answer, “No, I just remembered it all.” There’s a lot of give and take with that.
Bringing a Team
Besides the trial team, some experts subcontract their own team to assist in various capacities, which can be more efficient and cost-effective. Engineering expert Mark Landrum explains:
I would say it’s fairly common in the energy consulting field or the technical expert witnessing role for a couple of reasons. One, the testifying expert may have, as I mentioned, a number of cases that he or she is engaged in at a particular time. Then, if you receive two million pages of document production, it can prove a daunting task for the expert to do the initial review of all of those pages. In my case, it’s helpful to have experienced engineers that I can call on by delegating work to people who don’t have the same billing rate as I do. It can help minimize the cost to the client as well.
Expert witnesses who delegate should formalize this relationship in the engagement letter. He continues:
[W]e put proposed engagement letters and a rate schedule for not only me, but also the different levels of personnel within the firm that work in the advisory and dispute resolution area. We indicate in those engagement letters that we may, as appropriate, call on and delegate certain tasks to others. In my case, that could be a full-time employee […] that’s on my team. It could be a person in a different office. I’m based out of the Houston office, but I utilize engineers and professionals with the skills that I need from many of [our] offices around the U.S., or it could be a 1099 contract consultant. I have several of those that I call on from time to time.
Networking
In some instances, trial teams might be a worthwhile networking and bonding experience, especially when everyone is physically present for an extended period of time. Forensic accounting expert J.W. Verret recalls:
I did that recently in a case […] which was a $300 million money laundering criminal case [where I] worked with other experts and lawyers. […] For some parts of it, the lawyers rented a house in DC. Three or four lawyers and two or three experts all lived in that house for a month. They had this “frat house” for a month. A lawyer’s dog was even there. It was an 18-hour a day prep before trial. Once the trial started, they would go home, get a bite, and then prep, prep, prep. I spent a lot of time in that little frat house prepping and made some friendships for life as part of that experience.
Economic damages and Internet expert Sameer Somal agrees:
If I’m going to work with other experts, I can learn from them and probably build relationships with them. I’ve found that when you foster relationships from the heart and mind, people never forget how you made them feel. I’ve forged friendships with opposition experts that I’ve gone against, and they’ve wanted to collaborate and refer cases my way. Of course, experts that I have been on the same side have been able to think of me positively and pass my name along, which has everything to do with that fun notion of reputation.
Whether collaborative or compartmentalized, the role expert witnesses play on trial teams is vital. Get on the same page with your attorney regarding privileged communications, and ensure any subcontractors are accounted for in the engagement letter.
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