Those involved in litigation know all too well how expensive it can be. For the clients it can look daunting. When it is necessary to
engage experts a whole additional level of costs and fees can arise. In these challenging economic times, it can be even more difficult
for the attorney to hold the line on costs. So if the case needs experts, how can they be used without becoming prohibitively expensive?
The most important aspect of working with an expert is communication. Just as good, clear communication can assist in a smooth
running of a case, it is equally important in working with an expert. Be sure that from the outset the expert is aware of all relevant dates;
not just the trial, but the deadline for reports, depositions, discovery, and important case dates, such as the date of occurrence, valuation, triggering events, etc. It is important to keep the expert informed, especially if relevant dates change, the case strategy changes, new arguments or theories arise, or new facts come to light. The more the expert is informed, the more he or she can stay on top of the case and make quick changes if necessary, avoiding the need for a lot of last minute work. If the expert is under a quick deadline or is rushing to complete the assignment, the potential for errors and misunderstandings increase.
Hire a seasoned, well trained expert, one that has testimony experience. While it is not necessary that the expert have been involved
with the specific type of engagement before, a seasoned expert will have processes, procedures, work product already developed so that he can “hit the ground running,” thereby minimizing start-up time. A seasoned expert will also know quickly the documentation and information necessary to perform their tasks. Provide the expert (to the extent you can) the information and documents requested. The expert knows what is needed to perform the assignment; don’t’ second guess a knowledgeable expert. Sometimes, especially less trained associates will only provide an expert what they think is needed or what they think is requested. An omitted document can cause the expert to have to redo the work and may affect the conclusion, and, in turn, the entire case. Provide the expert copies of the Complaint, Cross or Counter Complaint, Interrogatories, Responses to Interrogatories, Stipulations, and other relevant court documents.
Inquire of your expert, up front, if he or she will have the time to devote to the case. An expert who is busy on another project
or commitment might be forced to perform last minute work, and again there could be wasted valuable time if items have to be
changed or redone.
If the case and circumstances are right, both sides might consider hiring a single independent expert. In some instances one
business valuator can perform the work necessary without each side hiring their own. While the acceptability of this option will differ
by case, it is an alternative that should be considered.
In some cases, and again the circumstances must be right, your client might be able to assist the expert in the performance of some
of the tasks. However, whatever tasks the client does perform, will need to be reviewed and analyzed by the expert. Neither you, nor the expert want to be in court and testifying that they relied upon the client’s information or assertion without a check of the facts. If the
expert can talk directly with the client, it can reduce the chance of misinterpretations or misunderstandings that may occur when communication is filtered through several levels. Often the client has lived the issue enough that they can succinctly, albeit
sometimes emotionally, explain to the expert what the expert needs to know.
Engaging the correct expert, communicating with him or her, providing required information, and including him or her in the
litigation team can effectively put to use their expertise, reducing your involvement, and streamlining the case. A well trained expert
will understand that it is your case, your strategy, and up to you to protect privilege and win for your client, but at the same time hiring
an expert can be a very effective tool to accomplish the win.
As Published in The Writ, January 2010.