The following is a cross-post from our sister business, Round Table Group, part of Thomson Reuters Expert Witness Services. TREWS is a referral service connecting attorneys with vetted expert witnesses from a wide array of industries. In this post for the group’s blog for litigators, Patricia Taylor explores how expert witnesses can be used to mitigate litigation costs and increase efficiency.
Expert witnesses are a necessity in many cases. Often times, the first thought that comes to mind upon deciding whether to hire an expert witness is “What is this going to cost?” While it’s true that many experts have very high fees, what if employing an expert witness could help make the litigation process more efficient and cost effective, actually saving money (for both the client and the firm) in the long run?
First and foremost, you (the attorney) have to have a plan. Your plan will differ depending upon the complexity of the case. But, overall you should consider how you will use your expert. At what stage will you introduce the expert into the litigation? Will you use the expert in a consulting or testifying capacity? What is the expert’s experience in similar cases and how can the expert help you focus the scope of the litigation? Is there a particular task which requires expert assistance? I will discuss a few ways an expert witness can help you be more efficient in managing litigation.
1. Developing the theory of your case. An experienced expert may very well have testified in a case similar to yours before. Talk to the expert about the theories and themes in those previous cases. What was successful? What wasn’t? Was there a particular method of delivery that was effective with the jury? An expert may even be able to give you information on previous cases, saving you valuable research time.
2. Drafting and responding to discovery. Discovery is often long, drawn out and can lead to an avalanche of paperwork that attorneys or legal support staff have to wade through and determine what is relevant. Instead of sending broad discovery requests, talk to your expert first to determine what is most important to support your case. Focusing your discovery requests could save you hours of time, allowing you and your support staff to work on other matters.
3. Develop visual aids for trial or mediation. If you’ve ever used graphic or demonstrative evidence, you know how much some companies charge to develop these visual aids. Some experts can assist in developing your visual aids or even create the aids for you. Again, if your expert has prior experience using visual aids, he may even be able to tell you which aids were most effective, which saves you time in creating the aid as well as the cost associated with development of an ineffective visual aid.
4. Valuable source of information on the opposing expert. In some fields, your expert may know the opposing expert personally or professionally. Your expert is a good source of information regarding the credibility of the opposing expert and can be a valuable source in developing voir dire questions. While this does not excuse you from doing your own homework with regard to investigating the opposing expert’s background, it can certainly help to focus you on topics of particular importance.
5. Deposition and trial preparation. An expert can help you develop questions for deposition and cross-examination of opposing counsel. It may be helpful to have your expert present at depositions or direct exam (if permissible) to help you prepare and formulate questions.
Of course, keep in mind that discussions with a testifying expert are discoverable by opposing counsel. So, exercise caution before sharing your work product. Instead of discussing a theory you have developed, try asking the expert about other cases he has worked on and his impressions. There is more protection with a consulting expert, but always be mindful of what you share with an expert.
In the world of litigation, time is money. Time is also scarce. Attorneys and legal staff are stretched thin to handle all of the files on their desks. Finding ways to increase efficiency increases the firm’s bottom line. If you plan ahead, an expert can help you with this goal.
Patricia Taylor is a legal writer for Engaging Expert Witnesses, the Round Table Group blog for litigators.
Good article.
I’ll gently push back on the point over creating graphics. It is exceptionally rare for an expert to be a great technical or specialty expert and be someone who can relate their expertise in lay terms – yet most experts are certain that they can. Unfortunately, it’s one of those things you only find out when it is too late. Here’s an article on our litigation blog: 7 Smart Ways for Expert Witnesses to Give Better Testimony: http://www.a2lc.com/blog/bid/50989/7-Smart-Ways-for-Expert-Witnesses-to-Give-Better-Testimony
You may save money in the near term, but you’d be penny-wise and pound foolish in my experience.