A Brief Introduction to Using Experts in Litigation

• Date: 01 April 2024

Published i n Litigation New s Volume 49, Numbe r 3, Spring 2024 . © 2024 by the Ameri can Bar Asso ciation. Rep roduced with pe rmission. A ll rights rese rved. This inf ormation or any p ortion there of

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BOOK REVIEW

any attorneys learn the ner aspects of

legal practice through hard-earned experi-

ence. Some experiences can be good. Others,

not so much. In How to Train Your Expert:

Making Your Client’s Case, Janet S. Kole

shares her lived experience in the use of experts at all stages

of litigation, from evaluating claims through defending cases

at trial. The result is a concise guide that answers questions

that newer litigators may be afraid—or worse, do not know

enough—to ask.

The book runs 132 pages and is split into 11 easily digest-

ible chapters, written in an engaging, conversational tone.

Most chapters contain anecdotes, both humorous and hor-

rifying, of how the subject matter has actually played out in

practice. Each chapter includes supplemental reading and sug-

gestions related to its devoted topic, including, for example,

the impact of different venues on whether attorney-expert

communications are privileged.

The purpose of this book is to explain, in straightforward

language, the “what,” “why,” and “how” of retaining and using

experts. Kole assumes that the reader is inexperienced, but not

unintelligent, and provides guidance at each step of the pro-

cess. Additionally, she provides helpful references to additional

outside resources for more detailed explanations of points that

can only be touched on briey in a book of this scope.

Chapter 1 deals with whether an expert is necessary or

even helpful to one’s case. Kole points to rules of civil proce-

dure that might demand or require an expert in, for example,

a medical malpractice case. But necessity aside, the focus here

is on whether an expert will be helpful in explaining complex

topics that an ordinary juror or judge may not understand.

Chapter 2 focuses on a topic that many litigators nd dif-

cult: how to nd a credible expert. The credible expert is more

important than any expert, explains Kole. She emphasizes the

need for attorneys to become knowledgeable about the par-

ticular eld in which the expert is expected to testify, so as to

ensure that the expert will not be subject to devastating cross-

examination based on prior testimony or publications. Kole

also recognizes that lawyers cannot become experts in every

eld and provides guidance on how to strike a balance.

Chapter 3 deals with the use of consulting experts, and

whether they are necessary. Kole discusses at length the ben-

ets and perils of using consulting experts and describes the

pitfalls that can occur as a result of the sharing with co-par-

ties’ experts who may, for example, also be fact witnesses to a

particular case. The advice provided in this chapter can be of

great benet to an attorney who is inexperienced with multi-

A Brief Introduction to

Using Experts in Litigation

How to Train Your Expert is available at http://bit.ly/LN493-expert.

party litigation and unaware of

the potential hazards of sharing

experts with other parties.

Chapter 4 highlights another

pitfall, in the form of privilege

between an attorney and an expert, and what is, and is not,

covered. Like other chapters throughout the book, this section

provides notice of the issues that may arise, with reference to

outside resources to aid in further understanding.

Chapters 5 and 6 deal with the nuts and bolts of prepar-

ing the expert report, from the facts and materials on which

the expert relies to the generation and production of a nal

report. Kole tosses in a reference to a canonical legal lm, My

Cousin Vinny, to both entertain and explain the thought pro-

cess that should go into the report and the expert’s eventual

testimony.

Chapter 7, aptly titled “Ethical Issues,” identies the risky

conduct that lawyers should avoid in dealing with experts.

This ranges from instructing an expert how to opine to ghost-

writing a report (spoiler: don’t do it). The title of this chapter

is somewhat self-explanatory, but it is nevertheless a crucial

inclusion directed toward the potentially over-ambitious

newer attorney.

Chapters 8 and 9 address preparing an expert for testi-

mony, interacting with other counsel, and relating to a jury.

In no uncertain terms, Kole explains how an aloof expert

can tank a case. These chapters are extraordinarily helpful in

describing how even experienced attorneys can better manage

the relationship between counsel and expert.

Chapter 10 relates to whether an expert can opine as to an

ultimate issue at trial, which, as Kole relates, can depend on

the jurisdiction and the prevailing law. She also discusses “ulti-

mate issue” for those newer litigators who are nevertheless too

far removed from law school to recall what it means.

Finally, Chapter 11 relates to the standard for determining

whether an expert opinion is admissible. This is, of course,

critical to ensuring that the effort expended in nding and

retaining an expert does not go to waste, not to mention

the countless hours and potentially signicant costs that are

invested in generating the report and eliciting testimony help-

ful to one’s case.

Kole freely offers her expertise throughout this engaging

work, providing a helpful framework for young attorneys to

quickly become expert at using experts. How to Train Your

Expert is an excellent resource. If it does not answer every

expert witness–related question, it at least makes sure that one

is equipped with the correct ones to ask.

By Grant H. Hackley, Litigation News Team Editor

SPRING 20 24 • VOL. 49 NO. 3

32 | ABA LITIGATION SECTIO N