AuthorWilliam M. Audet/Kimberly A. Fanady
Determine whether to retain exPerts task 70
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
Form 24 Expert Witness Disclosure
Determine Whether to Retain
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.
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
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
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.
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.
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).
Find and Retain Experts
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
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.
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.
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
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.
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’
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.

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