Making the Most of Your Expert

Monday, August 28th, 2017
Expert Witnesses
Summer 2017, Vol. 13, Issue 1

Making the Most of Your Expert

By Jonathan Couchman – August 28, 2017

An expert’s value in litigation extends beyond the report and testimony phases. From discovery requests to deposition questions, technical analyses, and settlement discussions, pretrial use of experts can strengthen a side’s case. At trial, preparation and proper utilization of experts are critical. This article will address how to realize the maximum benefit from the expert through all phases of litigation.

Communication: Key to Focusing Your Story Despite the inherent differences that come with advocacy (attorneys) versus independence (experts), the importance of attorneys and experts "being on the same page" cannot be overstated. A shared understanding of the landscape of issues involved in a case and the applicable legal framework forms a solid foundation that will allow all participants to effectively and efficiently work together.

Part of "being on the same page" includes developing a common understanding of the key themes of the case. In complex litigation, which often involves massive document productions, numerous witnesses, and seemingly countless detailed facts, distilling your case into a compelling story is crucial. Attorneys and experts should work together to focus the case on the most salient facts in order to most persuasively craft a story for the judge or jury.

It is important to make the most of every opportunity to use the expertise of your expert. However, properly using your expert extends well beyond the value of the opinions written in a report and expressed through testimony. An expert can also provide counsel with invaluable assistance at every stage of the case, ranging from taking efficient and tactically important discovery to critical examination of opposing experts to formulating a case-management strategy—all in order to persuasively tell your story at trial.

Initial Case Evaluation Early involvement of experts at the case-evaluation stage can help counsel fairly and objectively weigh the strengths and weaknesses of their client’s case and set realistic expectations for scope, schedule, and possible outcomes.

Overpromising and underdelivering is not a recipe for repeat business in the legal field. Most clients want an early, objective assessment of their case and their realistic prospects of achieving a satisfactory result. An independent expert’s involvement in case evaluation can help counsel define expectations for the case.

Just as much as clients appreciate a realistic assessment of their potential case from their attorneys, attorneys also appreciate a realistic and straightforward case assessment from their experts. A valuable expert is neither an echo chamber for initially promising case theories nor merely a "devil’s advocate" charged only with pointing out the case’s flaws. Instead, an expert should be an impartial sounding board that counsel can use to help determine what is realistically possible to achieve based on both the positive and negative circumstances present in the case.

Efficient and Strategic Discovery Obtaining the right information through the discovery process is critical to building your case and enabling your expert to provide powerful and persuasive opinions.

Whether obtaining data and documents from your own client or seeking production from the opposing party, experts can help identify not only what is needed but also the correct language to use to ask for it. Furthermore, experts can assist by recommending the formats and ranges in which data should be produced. This can prevent having to go back to opposing counsel to clarify a prior production request and then waiting weeks until it is produced in the useful format. Your expert may also provide guidance on the futility of using interrogatories to obtain certain information. For example, an expert may advise that it may be more efficient and effective to take the deposition of the chief financial officer, or to notice a 30(b)(6) deposition on the specific topic. Working with your expert to plan for efficient and targeted discovery requires minimal investment but provides the potential to yield extraordinary benefits.

Early involvement of experts can also prevent the pursuit of extraneous discovery. In truth, knowing what is not important can be as valuable as knowing what is. Moreover, this knowledge may also be strategically valuable in managing the finite amount of goodwill of opposing counsel.

In terms of assistance with written discovery, an expert can provide valuable insight when drafting document production requests, requests for admission, interrogatories, and correspondence with opposing counsel. Logically, the expert is often the best person to help counsel identify the information that is relevant to formulating the expert’s own opinion. Certainly, experts can ensure that the information produced contains the necessary level of detail and is provided in a useful and efficient format. In addition, though, the expert may be aware of industry-specific information or certain types or sources of documentation that counsel may not be aware of and that can be extremely valuable as evidence or useful as exhibits in the deposition of a fact or opposing expert witness.

Depositions of Fact Witnesses and Opposing Experts Depositions can result in some of the best evidence gained through the discovery process. Working with an expert both in advance of and during a deposition can allow counsel to more completely and effectively examine witnesses.

Using the skills and expertise of your expert begins with identifying the right individuals to depose. For example, an accounting expert may know that the plaintiff’s controller is most likely to have the answers, while an engineering expert may know that the quality control supervisor would have been responsible for the analysis at issue.

If the areas of inquiry are industry specific or highly technical in nature, meeting with the expert in advance of depositions can be helpful. Often, counsel will be required to examine someone with industry or technical knowledge greatly exceeding their own. Experts can be used to provide counsel with a base level of understanding and familiarity with industry-specific terms and concepts that are likely to come up during their examination. Additionally, preparing with your expert for depositions can help attorneys distinguish the important lines of inquiry from those that have no bearing on the issues in the case, saving valuable time during the deposition.

Your expert can also provide tactical assistance with depositions. Specifically, the expert can draft questions for use at depositions and help identify or prepare exhibits for use at deposition.

During a deposition, the examining attorney can use an off-the-record sidebar with an expert sitting at the deposition to get an on-the-spot explanation of the witness’s testimony. Did the witness even answer the question posed? The expert may be in the best position to identify instances of nonresponsive answers or misunderstandings between counsel and the witness. Additionally, the expert can suggest follow-up questions that allow the examining attorney to fully unearth relevant details or to obtain a transcript that is useful for cross-examination at trial.

It is particularly valuable to have assistance from the expert when taking the deposition of the opposing expert witnesses, who often require multiple follow-up questions to elicit responsive testimony. It can sometimes be as little as a single word in a question that requires tweaking in order to focus the response from the witness. Often having prior experience answering deposition questions themselves, combined with industry or subject matter experience, your expert can help you recognize slight but crucial changes to perfect your questions in the heat of the moment. Your expert can also help you anticipate how the opposing expert will likely attempt to defend analyses or opinions that are particularly vulnerable, allowing you to prepare thoughtful and strategic follow-up questions designed to test and potentially break down those defenses.

Evaluation of Opposing Expert Opinions Experts can assist counsel by performing critical reviews of opposing experts’ opinions to identify vulnerabilities and weaknesses. Particularly when complex damages calculations or scientific modeling is involved, the expert can be a great resource to help verify the validity of assertions or calculations made by the other side. Does their math add up? Are there any problems with the source data they are relying on? Are there other factors that the opposing experts have failed to consider? When winning the case comes down to a battle of "dueling" expert opinions, identifying and highlighting fatal flaws can leave the jury feeling that the opposing experts’ opinions are not a viable option.

Pretrial Tasks When it comes to pretrial tasks such as preparing motions, briefs, stipulations, proposed findings of fact, exhibit lists, and more, involving your expert is crucial to ensure that all participants are on the same page and have a common focus on the themes of the case. When included in your pretrial brief, the opinions of the expert can set expectations in the judge’s mind for the anticipated trial testimony of the expert. Consequently, it is imperative to work with the expert to ensure that opinions are framed and introduced through the pretrial brief in the same manner as the expert intends to describe them at trial.

Exhibit review is a great opportunity to involve the expert in identifying and evaluating potential exhibits for trial. If there are several documents that could be used to prove a point, which one is the best to use, and who is the best witness to use it with? While counsel may value a particular document for what can be proven by a certain section of it, the expert may recognize that another section has information that the opposing side would love to use with dramatic effect to advance one of its points. Perhaps the expert also knows of another document that can be used to prove the same point but that doesn’t contain the problematic section. Brainstorming with the expert on trial exhibits not only can lead to a tighter and more focused case but also may serve as excellent trial preparation for the expert. Additionally, pretrial review of the opposition’s exhibit list with your expert can help identify the anticipated use of those exhibits and proactively identify strategies to defuse or otherwise counter their intended effect.

Cross-Examination Prep Preparing for cross-examination of witnesses presents an opportunity to use your expert to sharpen your examinations and magnify their persuasive impact at trial. Strategizing with your expert can help identify the key points to establish through cross-examination. These key points can include not only facts underlying your case or your expert’s opinion but also testimony that erodes the opposition’s case. The expert can assist by writing specific cross-examination questions or by simply identifying important passages from deposition transcripts.

An often-overlooked aspect of preparing for cross-examination is live role play through mock examination. Based on expertise and subject matter knowledge, your expert is often a great choice to play the role of opposing fact or expert witness. When in character, your expert should push you and help you prepare for unanticipated responses. Mock testimony is also a great time to test and run through your impeachment material to ensure that you have the supporting deposition testimony that you need. Your expert’s in-character mock testimony can illuminate specific instances where a question needs to be refined; added; or, in some cases, removed.

Observation of Trial Testimony At trial, your expert can provide value assistance outside of time spent on the stand. By observing trial with an independent perspective and mind-set, your expert can provide invaluable feedback on the direction of your case and can often pick up on what is working and what is not. For example, your expert may have sensed confusion from the judge or jury on a particular subject where the trial team had expected understanding. Consequently, counsel can implement changes to explain the issue in a different way during the expert’s direct testimony. Subtle but important cues are sometimes hard for counsel to see when in the middle of the action but are often easier to appreciate from the gallery.

Another benefit of trial observation is that it enables your expert to later respond to opposing fact and expert witness testimony as well as comments and questions posed by the judge. On the expert’s direct, counsel can easily ask, "Did you hear Mr. X say ___, and do you have any opinions on that assertion?" Also, if your expert heard the judge’s questions earlier in the trial, it can be naturally addressed in the expert’s direct testimony and have the added benefit of establishing a connection between your expert and the judge. "I recall Your Honor asking about ___ yesterday, and on that subject, my opinion is ___."

Assistance with Cross-Examination Despite all your preparation, it’s sometimes just not possible to think of everything that might come up at trial. Your trial schedule usually includes periodic breaks that allow time for communication with your expert. During those breaks, experts can help with advice on strategic changes, such as modifying certain cross-examination questions or the use of different exhibits that might be more effective in light of the direction of the opposition’s testimony.

Admission of Exhibits and the Benefits of Compelling Demonstratives One of the best ways to tell your story and emphasize the key themes of your case is through the presentation of key exhibits and demonstratives that can be used to break down complex issues. We’ve all heard the phrase "A picture is worth a thousand words." In complex litigation, that may be an understatement.

Depending on the venue, experts can be used to move key exhibits into evidence. Even when that is not possible, experts can almost always be used to put key exhibits and helpful demonstratives in front of the judge or jury. Although the best exhibits and demonstratives almost speak for themselves, the advantage of introducing exhibits during your expert’s testimony is that they are accompanied by a skilled communicator who can magnify their impact and help to leave lasting impressions that reinforce your case themes.

Some experts have the skills and resources available in-house to prepare their own persuasive and visually compelling demonstratives. If a professional graphics design or visual presentation firm is used to create demonstratives, the expert should be directly involved with their development and design so that the final product fits seamlessly with the expert’s testimony. An additional option to consider is the use of 3-D printing to create models that can be viewed and even touched by the judge and jury.

Conclusion When used to their maximum potential, experts can provide far more value to litigators and their clients than what is captured in expert reports and testimony. Attorneys and experts can enhance the efficiency and effectiveness of their respective roles and contributions toward the litigation process. Early involvement and continuous communication, paired with a shared understanding of the factual and legal issues at play, permit all participants to unlock their greatest potential and enhance the prospects of a successful outcome.

Jonathan Couchman is a managing director at Veris Consulting in Reston, Virginia.

© 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.