Experts: When to Hold 'Em, When to Fold 'Em

One of the most difficult tasks litigators face today is deciding when-and when not-to use experts. In deciding which experts to retain in a specific case, counsel should analyze all issues that could benefit from expert review.

Rather than selecting only experts to use at trial, you should hire experts that can help before trial as well. For example, if you are investigating the potential for an allegation involving a defective restraint system against an auto manufacturer, you should hire consultants in at least these areas: accident reconstruction, biomechanics, restraint-system design and testing, government regulations, and perhaps metallurgy if a material failure is involved.

Similarly, in an investigation involving a post-crash fire, you should consider hiring accident reconstruction, fuel-system design and testing, fire-explosive, mechanical, and metallurgy experts, as well as someone knowledgeable about the history of government regulation and the industry's response to proposed regulations. Whether you actually call all these experts at trial is another issue. At this stage, it is crucial that you consider including experts in as many areas as possible. This way you can be sure to find the theory on which your best hope for recovery rests. In my practice, for example, I had a Jeep ease that started out based on a theory of instability and ended up based primarily on a theory of ineffective corrosion resistance.

Finding Effective Experts

In finding and selecting experts, you have two choices. You can hire a battle-worn expert who has been used many times by other attorneys or you can find and educate someone with little or no forensic experience.

Most attorneys do not give sufficient consideration to the second alternative. It is easier to hire experts who have testified before. Yet, often these experts have little or no experience or background to support their opinions and are not viewed as serious threats by the Opposition.

In evaluating a person's potential as an expert, first ask yourself whether education or experience will provide the basis for the expert's testimony. If you are looking for someone to address a design or testing issue, make sure that the expert has concrete experience or significant academic achievements in the area. Similarly if you need someone to evaluate the riding characteristics of an all-terrain vehicle (ATV) or motorcycle, look for someone with professional riding experience, not just someone with an engineering degree. You should consult with both types of experts and assess whether it is best to use one or both in your case.

One caveat: When you use experts who have real-world experience, do not try to make them into something they are not. Take advantage of their background and experience.

Consider the following situation: Plaintiff alleges that the staples used to attach shingles to her roof are defective and that the roofer should have used nails. Do you want an expert with a degree in civil engineering who can discuss the relative withdrawal resistance of nails versus staples, or do you want a roofer who may not have a college education but who has put on thousands of roofs and evaluated many instances of shingle failure?

If you hire someone without a college degree, at deposition the opposition may take the expert to task for lack of academic background. Counter by stipulating that in this instance it is not higher education but vocational training you are offering as the basis for the expert's opinion.

How many times have you hired an expert with a degree who is knowledgeable about the theoretical aspects of a problem, yet does not know how to take apart the car, ATV, or motorcycle, or does not really know how the vehicles are constructed? You should not rely solely on either experts with only academic experience or experts with only work experience. By obtaining perspectives from both, you can make an educated judgment as to the best approach for your case.

It is important to thoroughly explore potential experts' backgrounds. Have they ever been convicted of a crime? Have they ever worked for an attorney or company and taken a position that is arguably contrary to the one that will be set forth in your case?

If the experts are going to criticize a particular product, you need to find out before deposition if they own one of those products so you can minimize the effect of this problem. For example, if you are hiring metallurgists to evaluate a material failure in a post~crash fire case and you are maintaining that the design of the car's fuel system is defective, you want to know whether your experts or any of their family members have ever driven or owned the same model. And have the experts ever worked for the manufacturer?
  • Other valuable questions include-
  • How did the experts first get involved in consulting?
  • Have they ever testified in a ease involving issues similar to those in your case?
  • Have they ever been hired by the opposing attorney's law firm?
  • Do they currently have any cases with the opposing attorney's law firm?
  • What percentage of their income is derived from forensic as opposed to other types of work (teaching, for example)?
  • What percentage of their consulting income comes from plaintiffs' as opposed to defense work?
  • Have the experts ever written articles or reports pertaining to the issues involved in the case?

Always retain experts' services before naming them on the disclosure date of your case - the date when all experts who will testify must be identified.

Even if you become friends with your experts, formally address all correspondence to Mr., Ms., or Dr. Expert. It is a formal relationship and should be treated as such. Otherwise the opposition in cross-examination may attempt to taint the expert's testimonv with your purported friendship. Also, provide experts with all available investigatory material as soon as possible.

When an expert is retained, you should clarify the issues you expect the expert to address and document the fee arrangement agreed on. Typically, it involves a retainer and an hourly fee. Sometimes, experts charge one rate for consulting and another rate for testifying. Make sure you have a clear understanding of the financial arrangement.

When using experts, you generally get what you pay for. Experts will usually give you better service and more attention if you pay promptly and without complaint.

Include experts in the discovery process. Send them copies of the information you get from the opposition. Ask them for advice on items for review or what they think would be helpful to your theory of the case.

Often the experts are aware of critical information possessed by the opposition, and at times the expert can better assess discovery responses. Including experts in discovery will improve the quality of information discovered.

Preparing Experts for Depositions

Attorneys often assume several things about experts that are not necessarily so: that plaintiff's counsel must disclose their experts before the defense does, that the defense will have an opportunity to depose plaintiff's experts before naming its own, and that plaintiffs get to depose the defense experts.

It is not necessarily true that plaintiffs must designate their experts first or that expert depositions are a matter of right. Under Federal Rules of Civil Procedure 26 (b) (4) it can be reasonably argued that the discovery of the identity of experts and their opinions should be done exclusively pursuant to interrogatories and document requests. If the court is imposing a scheduling order, it can also be argued that expert witnesses should be disclosed simultaneously. (United States V. John R. Piquct Corp., 52 F.R.D. 370, 373 (E.D. Mich. 1971).)

Defendants have a right to discover plaintiffs' theories through written interrogatories. From that point forward, defendants are in as good a position as plaintiffs to investigate an underlying accident or facts to determine what, if any, experts are needed to help the jury understand the issues. Although it is not common, simultaneous disclosure of experts is used by many courts.

With respect to depositions, the court has broad discretion and can allow or prohibit expert depositions. When a case is not complex, courts can be convinced to limit expert discovery to interrogatories. If this is allowed, the court can require that the depositions be taken on reasonable terms and conditions. Plaintiffs' counsel should not automatically assume that they have to go first or that depositions will be taken.

When you prepare an expert for deposition, start thinking about how you will try the case. Sometimes it is in your client's interest to limit an expert to a narrow area of opinion, but the reverse can also be true.

For example, if you are preparing to depose your ATV or motorcycle expert whose opinion is based on experience, not education, limit the testimony to what the expert has learned through personal experience. Do not have this expert testify about human factors, design engineering, or accident reconstruction. Ask questions from the expert's perspective-a rider's perspective. Have your metallurgist stick to material-failure issues. Do not try to make your biomedical expert a restraint-system expert. Look carefully at your experts' qualifications and backgrounds and make sure that their opinions are well based.

It is unfair to put your expert out on a limb. But having said this, I recognize that it is effective at times to have the opposition think you are going to call three experts to testify and then you ultimately call only one. When you do this, however, make sure the expert is well qualified to testify in all areas that need addressing.

For example, in preparing a post-crash fire case for trial, you may initially retain an accident reconstruction expert, a fuel-system design expert, and an expert who has had prior experience with the defendant company. At trial, you may wish to call only the fuel-system design expert. To be able to testify on all issues at trial, this expert must have completed an accident reconstruction to the extent necessary to address the fuel-system issues and have reviewed the company's documents in order to testify about company knowledge, notice, and culpability.

In preparing experts for deposition, let them know how you approach a deposition. I tell experts that I follow the adage that what is sauce for the goose is sauce for the gander. I tell them how I will respond when the opposition asks for information of tangential relevance, if any, to the issues in the case. If; for example, the opposition requests income information, billing statements, correspondence, or similar documents from my experts, I direct them not to respond or produce the requested information unless the opposition stipulates on the record that its experts will produce the same information. Rarely have I been taken up on my offer.

Yet, I will seek this information from the opposition's experts even if they do not agree to my proposed stipulation. I have often had my opponent berate me and say there is no provision in the court rules for conditioning discovery in this way. But no attorney has taken me to court on this. The primary rule is to be fair-to ask of the opposition what it asks of you and your experts. Turnabout is fair play.

Prepare your experts to answer questions succinctly and to concede obvious points and avoid straying onto shaky ground.

Do not assume experts understand the concepts of negligence, strict liability, and causation. And do not assume they understand what it means to state an opinion to a reasonable degree of probability within their fields of expertise. Always thoroughly explore these critical concepts with your experts before deposition. Only after they understand these concepts can they render opinions with confidence.

I never request written reports and do not recommend having experts prepare reports unless an unusual circumstance requires it. I do not want to provide the defense with an opportunity to spot an inconsistency, however small. The same principle holds true for redeposing experts. When a defense attorney attempts to adjourn a deposition to a later date, I always fight this move.

For trial, narrowly focus your theories and call only those experts necessary' to present your theories to the jury. The television industries rule of threes says that comedians should never tell more than three jokes about one topic. If they do, the audience will become restless. You should apply this rule to the use of experts. Ask yourself what three points you want to make with an expert. If you cannot limit the points to three, make only one or two more.

Experts should be used at trial (1) to explain how an accident happened, (2) to explain a product's defect and its relationship to an accident (or the converse), and/or (3) to explain the defendant's negligence and evidence of the defendant's knowledge of the problem. At times it is effective for an expert who is thoroughly knowledgeable about the opposition's documents to take the jury' step by step through those documents.

I use a three-step approach to determine the use of experts. First, I ask which experts or consultants can help me understand what happened. Second, I ask which ones I really need to make my case and present it to the jury. Third, I consider what, if any, expert testimony is necessary to support my verdict on appeal.

At times, I have elected not to use any experts at trial because I did not believe there was an issue that required expert opinion. My strategy has generally been successful. However, in a few cases, after obtaining a verdict and then having to fight with the trial judge and the court of appeals to keep it, I have questioned my decision. When it comes to sufficiency of evidence, there is something magic about an expert's sanctifying the liability theories.

Deciding when to use experts and which experts to use requires careful analysis of all aspects of a case. You should carefully consider the ramifications of your decision.