The Missed Value of Expert Witnesses
I have been litigating and trying cases for the better part of three decades. I also audit attorney fee invoices on prevailing party motions, on claims for fees against insurance carriers, when there are disputes over fees between attorney and client, on consumer protection statutes, and numerous other fee issues. And I have taken hundreds of depositions of witnesses and experts.
Yet, the first time I had my expert deposition taken, I was struck that the attorney never asked me how I arrived at my opinions. While she asked plenty of questions challenging the opinions stated in my written report, she never asked about my process. So much was left unasked that I knew the weakest parts of my opinion were unquestioned, and were unlikely to be challenged at trial.
After this deposition, I had an epiphany. I saw the litigation process from the expert witness’ perspective and learned how much valuable information had been left undiscovered, by both sides of the action, due to the routine approach to expert witnesses. My first expert witness deposition changed the way I work with experts.
Expert witnesses usually get involved in litigation in one of two ways. First, counsel wants a particular expert at the beginning of the case and has an associate or paralegal contact the expert to lock them into the case. This approach is often used when the attorney does not want the other side to retain a particularly good expert; so they lock the expert in as soon as possible to avoid him/her being retained by opposing counsel.
Or second, the counsel realizes at the last minute that a particular expertise is needed at trial. The associate or paralegal solicits the expert’s opinion in just a few weeks or days. The expert is given a great deal of case material and left to determine what portions are important to the expert’s analysis.
I am guilty of both scenarios. I have a favorite appraisal expert whom, I believe, is the best in San Diego, and who has credibility with the local bar and judiciary. I call him at the beginning of a case if I know I’ll need a real estate appraiser.
An expert retained at the onset of a case is often provided with enough information to perform a conflict check and be retained. Thereafter, the expert is left in suspended animation for several months waiting for case materials for analysis.
I have been that expert in suspended animation. I was informed a case settled when I inquired about receipt of case materials. This is annoying to the expert who performed a conflict check, set up a file, and prepared an engagement letter for no value.
I have also retained an expert at the last minute. I recently had a case where the damages included the inability of my client to sell natural spring water from his property. He knew the worth of the water having sold it in the past. As discovery was nearing closure, I needed someone to explain the value of this water to the jury. Finding a spring water valuation expert is not easy and required intense effort to bring the expert up to speed.
Both scenarios can lead to unnecessary tension and leave a great deal of expert knowledge and assistance untapped.
However, there is an approach that falls in between these two extremes that can save time and money for counsel, the expert, and the client. This requires contacting your expert early, when the case issues are being formed and when facts are being gathered.
Though young associates and paralegals can do some initial expert interviews, the trial attorney should speak to the expert as early as possible. An early discussion of facts and legal theories asserted by both sides allows your expert to provide some insight into the case not considered by trial counsel. Early discovery of issues that tend in favor of or against your client is invaluable.
I have frequently explained to counsel hiring me as an expert how they can recover, or deduct, entire categories of fees that they had not considered before our discussion. These issues come to my mind because I have seen them before and deal with these types of issues on a regular basis. Often, counsel who hire me have not dealt with a deep level of analysis or have not been involved in a similar situation. Letting your expert be the expert in their field can yield untold value.
During the fact gathering stage of discovery, consult your expert regarding facts important to the expert’s analysis. Share your exhibit and witness lists with your expert. The expert can assist you in formulating questioning for fact witnesses and identifying additional fact witnesses who may have information important to resolution or victory. Sharing the witness list allows the expert to request documents or transcripts of depositions that are important to the expert’s analysis. I have also provided my clients with lists of questions to ask percipient witnesses and other experts to assist in forming the basis of my own expert opinions.
Experts can also be invaluable in assisting with trial preparation. The best experts testify like teachers. Work closely with your expert to develop a “lesson” for the jury. At trial, I once told the jury that the opposing expert had failed to “show their work, like your math teacher always told you.” No one could determine how the expert reached her conclusions and therefore, those conclusions lacked credibility.
I am fortunate to have experienced both the trial attorney and the expert’s perspectives in litigation. I have seen money wasted by lack of communication regarding facts and legal theories. I have seen useful information left undiscovered and never admitted into evidence. If the expert is part of the trial team from the beginning of the case, costs can be minimized and benefits can be optimized.
Jacqueline S. Vinaccia is a litigation and trial lawyer, and attorney fee auditor. Litigation is stressful and expensive. Ms. Vinaccia’s tenacity, coupled with her compassion for clients, prompts an honest assessment of litigation strategy, value, and cost to ensure her clients’ receive a smooth trial experience. She assists clients with their litigation needs before judges, juries, mediation, trial and appellate court.