Welcome to the JumpStart SME News Capsule, a regular publication designed to help lawyers improve their litigation strategies by working effectively with experts.
As a litigator, you are busy from the moment that you walk into the office until late into the evening when you answer your last e-mail. At the heart of everything that you are doing is effective communication – not just with the court, your clients and adversaries, but with the experts on whom you rely.
Today’s topic is how to kick off your initial communication with an expert witness so you will get the most from your relationship. To address this important topic, we have asked three senior partners at MMP&S — Andrew F. Pisanelli, Lorin A. Donnelly, and Peter F. Tamigi — to share best practices. Each of these seasoned attorneys has over 20 years of experience and handles all aspects of a case – from initial intake to trial and appeals.
One of the most important first steps in working with an expert is to define the scope of the engagement and present your expectations of the working relationship up front. Be clear about what you are looking for and how you envision the expert’s role. You should consider whether your communications with the expert is subject to any privilege, and, if it is not, discuss appropriate limits. It sounds easy, but it isn’t always done. I have spoken to many expert witnesses who felt that they were in the dark and not quite sure how to bring true value to the case.
When talking to an expert for the first time, be sure that you:
- Clarify the purpose of the expert consultation
- Explain the case background, timing, and the likelihood of a trial
- Discuss what the expert’s report should include and what is extraneous
- Set forth any budgetary parameters
Be sure you know what you want from an expert, for example:
- Advice on litigation strategy
- Education on a complicated technical issue/standard of care
- Record review
- Input on liability and/or damages
- Market overview
Let’s dive in and see what the veteran litigators have to say.
Andrew F. Pisanelli: “One of the biggest mistakes lawyers make when working with an expert during the early phases of the litigation, is not picking up the phone and talking. As a rule, I get to know the expert to be sure that they have the exact expertise that I am looking for.
“Lawyers should not be afraid to call their expert and tell them about the case particulars and ask the expert what evidence is needed to meet your burden. Furthermore, if you have questions or don’t understand a technical issue ask for clarification. Remember, you are a lawyer not the expert; they are getting paid as a consultant to answer your questions.”
Lorin A. Donnelly: “I retain experts early in the litigation process, so I can work with them as a litigation strategist and partner. I ask my experts to help me to understand technical issues, explore defense theories, prepare for depositions, and discovery responses. Importantly, their opinions and experience help me decide if I should try to settle the case or continue to litigate.
“To get the most from my conversations with the experts, I bone up on technical aspects of the case. I want to be familiar with the key issues so I can ask probing questions.”
Peter F. Tamigi: “It is critical to have an upfront conversation with an expert to be sure that the expectations are clear. Experts need to know who they are working for, the purpose of their consultation, case background, the working litigation strategy, timing, and the likelihood of a trial.
“During your first phone call you should determine if the expert has the right experience to opine on the particular issue in your case. After providing a broad-brush outline of the case, always ask the simple question, ‘is this in the realm of what you do?’ This is especially important if the case is unique. Find out if the expert regularly deals with similar issues and has the niche expertise that you are looking for. Sure, you may be talking to an orthopedist, but does he or she have the breadth and depth of expertise and experience to comment on a case involving brachial plexus injuries? You may be speaking to a tunneling expert, but in what? Design or geology? Would this expert hold up in court when asked about subway tunnels or water tunnels? Be sure that your expert has sub specialty expertise.
“After providing a short history of the plaintiff, I typically share my take on the case and ask the expert if I they think my initial thinking has merit.”
So, there you have it – Net Net: call your experts early and often. Work together to build out your strategy; be clear about your expectations and be open to their input.
The views expressed in these materials are solely those of the authors and not necessarily those of their clients or their firms. In addition, each authors’ view is limited exclusively to their individual contribution to these materials.