Experts

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 321-360

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Determine whether to retain exPerts task 70

CHAPTER 12: EXPERTS

TASKS

Task 70 Determine Whether to Retain Experts

Task 71 Find and Retain Experts

Task 72 Maximize Use of Experts

Task 73 Make Expert Disclosures

Task 74 Propound Expert Discovery

Task 75 Respond to Expert Discovery

Task 76 Notice Expert Depositions

Task 77 Prepare Experts for Depositions

Task 78 Depose Experts

Task 79 Supplement Expert Discovery

FORMS

Form 24 Expert Witness Disclosure

TASK 70

Determine Whether to Retain

Experts

I. WHAT AND WHY

A. An expert is someone with knowledge, skill, expe-

rience, training or education in a particular area.

See FRE 702.

B. Experts may act in various capacities, including:

1. Testifying at trial to explain or give an opinion

about matters requiring scientific, technical or

other specialized knowledge.

2. Consulting with counsel to help develop a case

theme, understand technical issues and pro-

pound and respond to discovery.

II. WHEN

A. Evaluate whether you need an expert at the outset

of a case or as soon as possible to maximize the

expert’s assistance. Experts can be extremely use-

ful in acquainting counsel with technical terms and

concepts, helping prepare pleadings, shaping litiga-

tion strategy and assisting in discovery.

B. Reevaluate your need for experts as the case

progresses and new issues arise or your case

theory changes.

C. Disclose information about experts who will

testify at trial 90 days before trial. FRCP 26(a)

(2)(C). See Task 73. If you fail to disclose your

experts as required, the court may not allow them to

testify.

III. HOW

A. Review the rules pertaining to experts.

1. FRCP 26(a)(2) addresses pretrial disclosure of

experts and permissible expert discovery.

2. FRE 702 establishes when expert testimony is

admissible and who qualifies as an expert.

a. Expert testimony is permitted where

scientific, technical or other specialized

knowledge will assist the trier of fact to

understand the evidence or to determine

an issue.

b. A witness may be qualified as an expert by

knowledge, skill, experience, training or

education.

3. FRE 704 provides that otherwise admissible

expert testimony may not be excluded merely

because it goes to an “ultimate issue.” For

example, an expert in a medical malpractice

action may testify that the defendant doctor

was negligent. The court may not exclude

the testimony on the ground that the expert is

usurping the trier of fact’s role by testifying on

an ultimate issue.

B. Determine the type of experts you need.

1. Review your annotated proof of fact (see Task

4) to identify issues for which an expert’s

assistance would be helpful. For example:

a. A tort claim may require an accident recon-

struction expert, a doctor, a rehabilitation

expert or an economist.

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task 71 exPerts

b. A contract claim may require an expert in

the subject matter of the contract, a busi-

ness broker or an accountant.

c. In professional negligence/malpractice cases,

expert testimony is often required by law.

2. Consider using experts in:

a. Cases which present complex, technical

issues, such as products liability, securities

fraud and toxic contamination.

b. Any case in which the jury would benefit

from help understanding the issues, even

if the subject is not completely arcane. For

example, an expert can help explain dam-

age calculations even though most jurors

understand medical bills and lost wages.

C. Consider using experts for strategic reasons, such

as to:

1. Rebut your opponent’s experts. Juries tend

to give more credence to expert witnesses

than to lay witnesses (even if the testimony is

the same).

2. Establish your case’s credibility. An expert

adds authority and weight to your evidence.

IV. PRACTICE NOTE

A. Experts are often expensive. However, expert tes-

timony can make or break a case. If your client’s

budget is limited, consider:

1. Using the client’s employee or colleague rather

than retaining a “professional” expert. While

such experts may appear biased, professional

experts may appear as hired guns who will say

anything for a fee. This is a judgment call for

you to make.

2. Selecting an expert with a broad range of

knowledge and experience who can testify on

numerous issues. Find one good car expert,

rather than a brake expert, a steering expert

and a carburetor expert.

B. Keep in mind Daubert v. Merrell Dow Pharms.,

113 S. Ct. 2786 (1993), where the U.S. Supreme

Court ruled that a trial court must act as a “gate-

keeper” in determining whether an expert should

testify. If your consultant’s opinions are based on

questionable theories, study the Daubert opinion

before deciding to use the expert at trial. Stollings

v. Ryobi Technologies, Inc., 725 F. 3d. 753 (7th

Cir. 2013) (expert testimony permitted where

expert correctly used valid methodology, even

though some data used was a rough estimate);

Miller v. Pfizer, Inc., 356 F.3d 1326 (10th Cir.

2004) (court concluded that plaintiff’s expert did

not use generally accepted methodology in form-

ing opinions; expert’s testimony excluded at trial);

Farrar & Farrar Dairy, Inc. v. Miller-St. Nazianz,

Inc., 69 Fed. Rules Serv. 3d 767 (E.D.N.C. 2007)

(in proposed class action, motion to exclude

testimony at class certification stage denied as

premature Daubert challenge; party not required

to prove merits of case while seeking to meet

threshold requirements for class certification).

While you may sometimes need to use an expert

outside the mainstream, be sure you understand

the risks. Keep in mind Daubert when evaluat-

ing your opponent’s experts as well. See Soroka

v. AMTRAK, 49 Fed. R. Serv. 3d 710 (S.D.N.Y.

2001) (expert allowed to testify when opposing

side made no Daubert objections). You may offer

expert testimony at a Daubert hearing to show

why your opponent’s expert should not be per-

mitted to testify. Arble v. State Farm Mutual Ins.

Co., 78 Fed. Rules Serv.3d 869 (D.N.M. 2011)

(expert was retained solely to testify at Daubert

hearing on qualifications of another expert, and

would not testify at trial). Note also that the court

may impose sanctions, including excluding expert

testimony, for failure to attend a Daubert hear-

ing. Downs v. Perstorp Components, Inc., 126 F.

Supp. 2d 1090 (E.D. Tenn. 1999).

TASK 71

Find and Retain Experts

I. WHAT AND WHY

A. Once you determine that you need an expert (see

Task 70), you must find and retain one.

B. Consider retaining as many experts as you can

afford.

1. Using experts to advise you pretrial can pro-

vide you insights you might otherwise miss.

2. Using an expert to testify at trial can help con-

vince the jury to find in your favor.

3. Practically speaking, the party with the best

experts has an advantage over other parties.

II. WHEN

A. Begin looking for experts at the outset of the

case or as soon as you realize you need them,

and select them as soon as possible. Experts can

be extremely useful in acquainting counsel with

technical terms and concepts, shaping litigation

strategy and assisting in discovery.

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finD anD retain exPerts task 71

B. Retaining particular experts early ensures that

other parties will not use them. This can be

important when you want the best expert or when

few qualified experts in a particular area are

available.

C. You must disclose information about testifying

experts 90 days before trial. FRCP 26(a)(2)(C).

See Task 73. Retain experts far enough in advance

of the disclosure deadline to allow them sufficient

time to review the evidence, interview witnesses,

conduct tests, meet with you and, if appropriate,

prepare a report.

III. HOW

A. Contact potential experts. Good sources include:

1. Your client. If the issue involves your client’s

business, your client will probably be able to

recommend some candidates.

2. Other attorneys. Ask for recommendations

from attorneys who practice in that area of

law, particularly if you are new to the field.

3. Industry, professional or trade associations

and unions.

4. Trade journals.

5. Legal magazines and newspapers.

6. Bar association directories or lists of expert

witnesses. For example, the Association of

Trial Lawyers of America (ATLA) keeps an

extensive computer-based information retrieval

system from which members can obtain con-

sultants’ names, cases in which they were

involved and lawyers who retained them.

7. Colleges and universities.

8. Government agencies.

9. Authors of treatises or other scholarly works.

Check a library or bookstore for the leading

publications in the field.

10. Reports of jury verdicts or appellate decisions.

These may state the experts who testified. Call

the attorneys involved to discuss the experts’

performance.

11. Computer research. Online services such as

Lexis or Counsel Connect have expert databases.

12. Expert association publications such as the

Forensic Services Directory published by

the National Forensic Center.

13. Referral services that provide experts for a fee.

However, such experts may appear to be more

like hired guns than experts found through

other methods.

B. An expert who will testify at trial must have:

1. Qualifications of an expert in the field.

a. FRE 702 defines an expert as “a witness

qualified as an expert by knowledge, skill,

experience, training, or education.” An

expert must have sufficient background

and knowledge to:

i. Meet the FRE 702 standard so his testi-

mony will be admissible.

ii. Impress the trier of fact.

b. The expert must have a good reputation

and be recognized in his field. The jury

will not be impressed with an expert whom

other experts have not heard of or who

never wrote a book or an article. Be sure

your expert is not exaggerating his qualifi-

cations in order to get the work.

c. Consider whether an academic or a practi-

cal expert will be most effective. Some

issues require scholarly learning; however,

on the issue of why brakes failed, the jury

may be more convinced by the mechanic

who performed thousands of brake jobs

than the engineering professor who has not

been in a garage in 20 years.

2. Communications skills. The expert’s pri-

mary function is to explain matters which are

beyond the jury’s experience. A good expert

can communicate complex ideas in a clear and

interesting way.

3. Personality.

a. The expert should be affable and friendly

so the jury likes him and feels comfortable

with him, without being so familiar that the

jury loses respect for him.

b. Juries do not like pompous, “know-it-all”

experts. The expert should be knowledgeable

and confident without being condescending.

4. Integrity.

a. The expert must be truthful and honest.

i. Juries often tend to think experts are

“hired guns” who will say anything the

highest bidder requires. The expert

must establish his credibility early.

ii. The expert should not have any conflict

of interest. Experts who “switch sides”

lose credibility with the jury.

iii. Experts who are party employees nec-

essarily appear biased in favor of their

employer and may lose credibility.