Selection of Experts

Pages61-74
61
CHAPTER V
SELECTION OF EXPERTS
A. Introduction
The role of experts in federal antitrust litigation cannot be
overstated.1In addition to providing essential evidence on basic
elements of antitrust claims and defenses, an expert may help explain
how underlying evidence relates to the economic concepts on which
antitrust claims and defenses are based. If the expert is an effective
storyteller (which is a primary qualification of any good testifying
expert), then the expert’s testimony becomes even more compelling.
From the defense standpoint, because the plaintiff carries the
burden of proof, the defense expert on liability and/or damages must, at a
minimum, neutralize plaintiff’s expert testimony. In fact, if the case
boils down to a battle of experts charged with interpreting and analyzing
the record evidence, winning the battle of experts may win the war for
one party or the other.
Merely selecting an expert based upon pedigree and assuming that
the expert can present convincing testimony is a serious mistake. An
expert’s pedigree alone will rarely win the case.
Further, errors in expert oversight or discovery miscues with one’s
own or an opposing expert may also significantly impact the credibility
of the expert’s testimony irrespective of the expert’s qualifications.
The following sections identify the topics that should be considered
by antitrust counsel in dealing with expert testimony.
B. Finding and Selecting Experts
One of the most important tasks in an antitrust case is locating a
suitable expert(s). It is important in selecting an expert to ensure not
only that he or she will be an effective witness in deposition and at trial,
but also to ensure that the fees and expenses in the engagement meet the
client’s expectations and are properly managed during the course of the
engagement. Likewise, sensitivity to expert fees and expenses, both at
the time of initial retention and during the course of the expert’s work, is
essential to cost-effective management of litigation.
1.Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993);
Khumo Tire Co. v. Charmichael, 526 U.S. 137 (1999).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT