Selection of Experts

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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).