By Dr. Caroline Crump and Natalie Baker Reis
Every case has its own unique set of facts and determining the best methods to defend it can be tricky. Luckily, there are certain professionals who exist to provide this kind of support for you: litigation consultants and experts. They have considerable medical, engineering, and scientific experience – often in a wide variety of cases –that can be leveraged to navigate nuanced technical issues efficiently and effectively.
Whether exploring potential strategies, assessing the strength of a particular allegation, or presenting a persuasive argument to a jury, experts can help attorneys prepare their case and defend their client with confidence. Here we present insights into successful strategies for creating the attorney-expert team, including some unique considerations for the current COVID-19-related closures and economic uncertainties.
1. Identify the Basics of Your Case
Identifying certain issues up front, such as the need for specialized expertise, can help guide your search for the right expert at the right time. First, assess the type of expertise needed to evaluate and successfully defend your case. For example, does the case involve a highly technical piece of equipment, or do you need a deeper understanding of the medical facts in order to form a legal strategy moving forward? Identifying the type of expert support required is an important step in developing case strategy.
Second, set your budget. It’s essential that you know your budget and what you’re willing to spend. If you expect the case to go to trial, would your client be willing to pay for an expert with a higher level of experience? Would retaining more than one expert to cover the various case aspects be potentially critical to case outcomes compared to hiring just one? Preparing an internal cost analysis and confirming budgetary requirements with your client will help provide a clearer picture of what is truly needed for your case before you begin contacting prospective experts.
2. Engage Experts Early!
Determining your team of experts should be done as soon as possible, as it can be time consuming to locate and retain the right expert for your case. After all, obstacles can arise during the process (e.g., the potential expert has a conflict) that will send you back to the beginning of your search. Additionally, the sooner you engage an expert, the sooner you can benefit from the expert’s insight into the strength of the case, recommendations for additional relevant discovery actions, and potential issues that the other side may bring up. Engaging experts early is especially important to consider with the many pandemic-related court system closings and rescheduled case hearings and deadlines. It would not be a surprise for there to be a flurry of activity and unexpected movement of dates once social distancing ends. You can keep the case on track and running smoothly for when courts re-open by securing an expert early. He or she can begin to analyze the case, hold dates in his or her calendar, and report or submit the work product early to help you prepare your strategy.
Engaging an expert, or group of experts, early also increases the likelihood of the chosen expert being available or able to accommodate your deadline. Experts, like attorneys, are often extremely busy, and they might not have time in their schedules to take on your case – especially if little advance notice is given. Securing one early increases the likelihood that the expert can commit to the deadlines you’ve assigned and dedicate the appropriate amount of time to your case in order to provide his or her best work.
Finally, waiting too long to engage an expert could result in additional fees. For example, if you need work product completed in a matter of days, chances are you could be charged a “rush” fee for the short turnaround time, in addition to the expert’s regular fees. This extra cost most likely will not be appreciated by your client– especially if it could have been avoided in the first place.
3. Find and Vet the Expert
Finding the right expert – whether a consulting or testifying expert – for a case can seem overwhelming, but thankfully, attorneys have a vast amount of resources at their fingertips. One of the greatest ways to find an expert is through referrals from other attorneys. Start by asking attorneys in or outside your firm who you know have worked with other experts or consulting groups and get their feedback and recommendations. Clients can be great resources, as well. They, too, have a vast network to tap into and may have a history working with certain respected experts in the field, as well as those experts who should be avoided. Experts you’ve worked with in the past can also serve as invaluable sources of information and referrals to other experts. By utilizing these resources, you will be able to develop a pool of experts over time; one that you will be able to pick and choose from in the future.
Once a potential expert has been identified, it’s important to vet him or her thoroughly to determine if they will provide the most effective testimony or analysis for the issues identified. First, carefully review the expert’s credentials. Check his or her qualifications for relevance to your case and confirm that the background information you have (i.e. the expert’s curriculum vitae and references) is accurate, complete and up to date. In addition, review the expert’s past publications and reports, if available. This will provide insight into whether the expert has publications relevant to the issues of your case or has rendered opinion that contradicts the position you’re taking. Search public records to verify or uncover any potentially important information about the expert’s experience or testimony, and talk to any colleagues familiar with the candidate to find out what it’s like to work with this expert: for example, how efficiently and rigorously the expert conducts his or her analyses. Finally, it is important to keep in mind that altered schedules and work practices during the pandemic may introduce delays in receiving responses, or challenges in connecting to sources of information, during your vetting process. Plan accordingly!
4. Interview the Prospective Expert
Once you’ve vetted the prospective expert, it’s important to interview him or her. Doing so allows you to assess the expert’s qualifications further, as well as determine what kind of impression the expert will convey to a judge and/or jury. Interviewing the expert also provides an opportunity to learn additional information that cannot be gleaned from the expert’s curriculum vitae or website, such as the expert’s experience on cases with similar fact patterns. Conducting an interview will not only allow you to assess the extent of his or her expertise, but it will also help you determine if that expert is indeed the right “fit” for your case.
It is important to confirm whether your firm has a specific process for engaging with potential experts that you should be aware of before beginning. At a minimum, first steps in speaking with the expert should include verification that there are no conflicts of interest with any affiliated party in the case, as well as obtaining a non-disclosure agreement. Until these actions are completed, only share general case information and case issues that are not confidential, rather than a detailed explanation of all available information.
5. Support the Expert’s Analysis
Once an expert has been engaged, a good practice for containing costs is to discuss in advance the pertinent information and materials that the expert requires in order to conduct a comprehensive analysis. Ask for the expert’s rationale regarding any requested case documents so you can feel confident with the planned approach and best able to defend associated costs.
To support the expert’s analysis, it is important to provide a clear picture of the work product required from the expert. For example, if a nurse expert is a member of your team, maybe you’d like him or her to identify specific issues, such as potential alternative causation or mitigating factors, or maybe you’d like the allegations of injury in connection with pre-existing medical conditions or exposures to be analyzed. Determining the scope of a desired work product will be helpful for the expert in determining which case materials are the most pertinent and relevant to your case.
In addition, budget requirements should be discussed prior to the expert beginning any work. No client wants to be surprised with a bill that is significantly higher than what was expected, so ask to be notified in advance prior to the expert’s billable hours reaching a certain pre-defined limit. This will enable you to stay abreast of potential total case cost and adjust the plan if needed. Finally, attorneys should always provide their experts with upcoming court deadlines, as well as their own internal ones. By knowing these dates in advance, experts can space out their workload and not rush or sacrifice the quality of their work due to time constraints.
6. Trust the Expert’s Findings
This applies at several stages of the case. First, an expert must be able to defend their own analyses. This means that he or she needs the space to perform an independent analysis based on the entirety of the evidence. From the very beginning, you can help experts attain that space by alerting them to issues to address, rather than specific conclusions that you hope will be reached. Understandably, this may feel risky! However, the case will only be strengthened by including an independent analysis guided by scientific and engineering principles. Additionally, this will help the expert create a clear analysis and argument for each conclusion that can withstand Daubert challenges.
Along these same lines, when experts complete their analyses, those findings may or may not be favorable to your client. However, those findings that are unfavorable are not necessarily a bad thing. After all, you will learn ahead of time what the weaknesses in the case are and have time to craft a defense against them. Furthermore, you have identified a potential issue for your client, which your client can then address to help mitigate or avoid future lawsuits. Overall, it is better to know what problems exist, as well as the magnitude of those problems, rather than ignoring them in hopes of avoiding blame.
7. Consider Using Multiple Experts
Often if there is a strong fact pattern, it can be bolstered by expertise in multiple disciplines that dovetail together. For example, a vehicle-pedestrian accident can be addressed by a team of civil engineers (to address structural and code issues with walkway/roadway), accident reconstructionists (to establish what each party was doing in the moments leading up to the collision), human factors scientists (to address issues of driver and pedestrian capabilities, including sightline obstructions and attention/distraction), and biomechanists (to address injury causation). Complementary findings from these experts – such as no code issues, a distracted pedestrian, and a clear movement error leading to injury – enhance the credibility of your argument based on the fact pattern. Furthermore, many of these experts rely on each other’s findings to support their own conclusions. For instance, human factors scientists may rely on accident reconstructionists to provide details about the situation the involved parties were navigating at the time, and accident reconstructionists may rely on biomechanists to provide bounding information about minimum and maximum vehicle speeds that could cause a broken bone when the pedestrian and vehicle collide.
However, it is not always ideal to include experts in all relevant disciplines! There can be overlap among issues that each expert is qualified to address. For example, gait mechanics can be addressed by human factors experts and by biomechanists. When there is sufficient overlap in the analyses completed, you risk one or both experts getting a Daubert challenge. Moreover, these experts may come to somewhat different conclusions about the same issue, which can weaken your case. Therefore, while it can be beneficial to utilize a team of experts, the members of the team should be chosen with care and experts with overlapping expertise should be kept in contact to ensure their respective contributions are unique and complementary.
8. Know When to Change Your Expert and When to Settle Your Case
Cases and theories evolve over time. This means that the experts you selected at the beginning may not be the same experts you have at the end. Luckily, the issues often evolve such that the same expert may be able to testify on the new issues. However, it may happen that the expert cannot testify on a new issue (for example, if you’ve gone adverse to a co-defendant). Don’t be discouraged in this case – you’re not necessarily starting back at square one! There may be someone on the expert’s internal team, within the expert’s company, or that the expert otherwise knows who can get spun up on the case quickly.
On the other hand, you may end up with an expert who can’t answer your question as you thought. For example, there may be insufficient evidence for an accident reconstructionist to complete his or her analyses. This can be used to your advantage: you can take the time to figure out a new strategy for the defense of your client, and you can use this knowledge to challenge the opposing expert’s reconstruction.
In some circumstances, you may decide that the expert’s analysis suggests you should admit fault and settle the case. Always discuss with your experts before going this route! One expert may believe this is the right thing to do, while another may have an excellent argument in defense. The experts may also have suggestions for a new theory. In the end, however, the experts should be able to help you decide the right path to take in resolving the case in the most beneficial way possible.
Ultimately, experts can play a crucial role in the outcome of your case, so it’s important to think of the attorney-expert partnership as a team effort. By knowing what you truly need to accomplish and supplying the necessary information and guidance, the more effective and beneficial the expert’s analysis and/or testimony will be.