by Jeff Curran

Part of my on-going series of posts providing more insight into "How to Find the Right Expert WitnessTop 10 Tips." 

Tip 6: SourcesProfessional association meetings like the American Association for Justice (formerly ATLA) and the Defense Research Institute (DRI).

The next time you find yourself at one of these meetings, take a few minutes to simply stop by and talk with some of the experts and vendors.  Organizations like:

1. American Association for Justice (AAJ) (formerly the American Trial Lawyers Association) - an organization that consists mainly of Plaintiff-oriented lawyers (www.aaj.org);

2. Defense Research Institute (DRI)- an organization of defense-oriented counsel and manufacturers (www.dri.org);

3. American Bar Association (ABA) (www.abanet.org); and

4. State and local bar associations or practice-related professional organizations

It is a great way to find out what disciplines they may have, and a better way to consider "people skills".  Use these meetings to get familiar with the experts, and make notes. 

Even if these experts are not "the one" for your particular case, someone in their office or someone they know in the industry may be. They are great sources for networking with other experts and understand what technical areas may help in future cases.

We're past the half way mark, but stay tuned for more good tips.  Hope you've been making progress with that case you're working on.

Author

Jeff Curran

Of Counsel, GableGotwals, Oklahoma City, OK

Co-Author with Kurt Meaders of Expert Witnesses: Motor Vehicle and Accident Reconstruction Cases

by Jeff Curran

Another in my on-going series of posts providing more insight into "How to Find the Right Expert WitnessTop 10 Tips."

Tip 5: What's your budget and how many experts can your case handle?

Always be aware of the economic side of your case when trying to locate experts. Expert fees will increase as the technical difficulty of the case increases, and as their technical knowledge and ability to communicate those issues to lay people on the jury increases.  While we all would like to win every case by bringing using our "best guns," sometimes we have to use what ammunition the case can support.  If you bring in a ton of high-priced experts in a relatively small case, you run several risks, such as spending too much money (obviously) or making the case seem bigger than it is.

And ask yourself how many experts can your case handle?  Whether your case can support the experts needed and/or chosen depends on whether the technical issues require it, whether the judge will allow existing experts to speak on the issues and whether counsel believes the jury will accept more experts or be content with the experts presented.

Studies have found that the average jury pays very little heed to what a paid expert has to say - they figure that the expert is saying what they have been hired to say.  However, this does not affect your legal burdens - you have to have experts regardless of the degree of attention the jury pays.

As always hope you find the tips useful and good luck with that case you're working on.

Author

Jeff Curran

Of Counsel, GableGotwals, Oklahoma City, OK

Co-Author with Kurt Meaders of Expert Witnesses: Motor Vehicle and Accident Reconstruction Cases

by Jeff Curran

More of my on-going series of posts providing insight into "How to Find the Right Expert WitnessTop 10 Tips."
  
Tip 4: Consider where you are (the venue) and who you are (you and your client) when determining number and potential impact of different experts.

Consider where (and who) you are.  Are you a big company or are you in a small town venue (or both)?  Or are you perchance on the other side of a big company?  You might want to consider using someone more local (but don't sacrifice quality for geography).
 
Hope you find the tips useful and good luck with that case you're working on.

Author

Jeff Curran

Of Counsel, GableGotwals, Oklahoma City, OK

Co-Author with Kurt Meaders of Expert Witnesses: Motor Vehicle and Accident Reconstruction Cases

Over the coming months, Westlaw Round Table Group's Engaging Expert Witnesses blog will be welcoming a number of guest authors who will share their insights about how to find the very best expert witnesses, and how to effectively utilize experts in your litigation practice.

Our guest bloggers will include Damian Capozzola (co-author of Expert Witnesses in Civil Trials: Effective Preparation and Presentation), Jeff Curran (co-author of Expert Witnesses: Motor Vehicle and Accident Reconstruction Cases), and many others.

We hope you will join the discussion!

by Jeff Curran
 
This is part of my on-going series of posts providing more insight into "How to Find the Right Expert WitnessTop 10 Tips."
 
Tip 3:  Sources:  Consider your own/colleague's previous experience/litigation with an expert.

You know some of the things to consider, but just where can these "lords of the courtroom" be found?  The first place I'm going to tell you to look is your own backyard. In other words, there really isn't a better place to look than either to somebody you or your partners have used before.  But if you have an issue about which you must go outside your experience zone, check with people you've used before in other types of related litigation. 

Or, check somebody else's backyard, i.e., call a friend who practices in that area and see who they've used, or maybe who was used against them that worked out well.

Hope you find the tips useful and good luck with that case you're working on.

Author

Jeff Curran

Of Counsel, GableGotwals, Oklahoma City, OK

Co-Author with Kurt Meaders of Expert Witnesses: Motor Vehicle and Accident Reconstruction Cases

by Jeff Curran

This is part of my on-going series of posts providing more insight into "How to Find the Right Expert WitnessTop 10 Tips."

Tip 2:  Consider all the disciplines you may need to have covered by an expert witness.

Step back and think about everything you will need in the way of expert testimony.  What are the technical issues in the case?  The damage issues?  Where is the case on file?  The complexity and type of case will ultimately determine the type of experts needed, the number of experts needed and the quality of experts needed. Of course, for various reasons you may not want all the experts the case may call for (can't afford them, don't want to blow the case up too much, etc.).  But in order to have a complete analysis of all aspects of your case, identify what experts might be needed then start with that list in deciding where you want/need to go. Your client will thank you.

Hope you find the tips useful and good luck with that case you're working on.

Author

Jeff Curran

Of Counsel, GableGotwals, Oklahoma City, OK

Co-Author with Kurt Meaders of Expert Witnesses: Motor Vehicle and Accident Reconstruction Cases

by Jeff Curran

This is part of my on-going series of posts providing more insight into "How to Find the Right Expert WitnessTop 10 Tips."

Tip 1:  Begin your expert witness search early as possible. 

You simply cannot properly or practically evaluate your case until you have decided if expert testimony is necessary and how it may be used.  You do not want to take a case only to learn months down the road that you need a certain kind of expert.  Also, your client is relying on you as counsel to explain the case to them and what to expect from the litigation process.  So, evaluate your case for expert witnesses as fully and completely as possible at the earliest available opportunity.  Easy to say, I know, and maybe not so easy to do.  And if you have budgetary restrictions to deal with (more on this later, but who doesn't have them?) such  issues present an additional problem.  But the bottom line is, the earlier you do it the better off you'll be.

Up next Tip 2, then...well, you get the picture.  More posts to come and good luck with that case you're working on.

Author

Jeff Curran

Of Counsel, GableGotwals, Oklahoma City, OK

Co-Author with Kurt Meaders of Expert Witnesses: Motor Vehicle and Accident Reconstruction Cases

by Jeff Curran

Let me start off by saying there may not actually be ten actual "tips" here.  I'm not even sure if I can legally use the term "top ten".  But since it will catch your eye and possibly keep your attention, I'm going to use it and hope I get to the magic number.

Not every case needs an expert.  But most do, and if you're reading this them I'm guessing most of yours do.  So, follow along, and hopefully we can provide you with some useful information for the finding the right expert witness for your case.

   Tip 1: Begin your expert witness search as early as possible.

   Tip 2: Consider all the disciplines you may need to have covered by an expert.

   Tip 3: Consider your own/colleague's previous experience/litigation with an expert.

   Tip 4: Consider where you are (the venue) and who you are (you and your client) when determining  number and potential impact of different experts.

   Tip 5: What's your budget and how many experts can your case handle?

   Tip 6: Sources  Professional association meetings like the American Association for Justice (formerly ATLA) and the Defense Research Institute (DRI).

   Tip 7: Sources  Case and Jury Verdict Reports in print and on Westlaw.

   Tip 8: Sources  Websites and professional search services like the one that hosts this blog and others.

   Tip 9: Personally meet with the expert you are thinking about using (if possible). 

   Tip 10:  Make sure your potential expert knows what they are talking about

Stay tuned for future posts where I give you the "whys" and "wherefores" for each Top 10 Tip.  Until then.....

Author

Jeff Curran

Of Counsel, GableGotwals, Oklahoma City, OK

Co-Author with Kurt Meaders of Expert Witnesses: Motor Vehicle and Accident Reconstruction Cases

by Damian Capozzola

Recent revisions to the Federal Rules of Civil Procedure--effective December 1, 2010--raise important issues for litigators working with experts.  Perhaps most important is new Rule 26(a)(2)(C), which clarifies the need for additional specification in disclosing "expert" witnesses who might previously have remained undisclosed.  The Rules generally require (and have required) that retained experts and even company employees who routinely testify as experts need to prepare and disclose comprehensive pretrial reports, so that opposing counsel could review those reports and depose the experts intelligently about their opinions.  However, this category historically excluded company employees who did not routinely testify as experts.  The revision dictates that going forward such company employees must at least provide a summary of their expected testimony.  Treating physicians were another group of witnesses who sometimes fell through the cracks that this revision aims to close.

Note also that the revision raises an issue that previously had often lurked under the surface.  In many instances company employees involved in the matter might not even view themselves as providing "expert" testimony as opposed to simply providing factual testimony about the case.  However, especially in the kinds of complex, scientific litigation matters most often calling for experts, such an employee's testimony is indeed likely to qualify as "expert" testimony in the eyes of the court.  It therefore will be important to discuss early in the litigation with litigation counsel which employees might likely be qualified to give such blended factual and expert testimony, to be sure that their identities are properly and timely disclosed, and that at a minimum an appropriate summary of the subject matter, underlying facts, and opinions expected in such testimony is provided to the other side in compliance with new Rule 26(a)(2)(C).

The second major area of amendment concerns draft reports and attorney-expert communications as now governed by Rule 26(b)(4).  The prior Rules, in particular requiring the disclosure in the Rule 26(a)(2)(B) report of "the data or other information considered by the witness in forming" the opinions to be expressed, allowed significant pretrial discovery of draft reports as well as communications a testifying expert had with counsel.  In deposing testifying experts, opposing counsel have since almost always covered these two areas, sometimes in great detail requiring vast amounts of time, as the deposing attorneys probed for evidence that the supposedly neutral expert's opinion had been suggested or molded by opposing counsel.  Such discovery tactics resulted in experts and the counsel who retained them to take drastic and inefficient measures to avoid creating discoverable material, often spending many billable hours talking through ideas on the telephone instead of just exchanging written drafts.  Litigation counsel would also often recommend retaining two experts, one to testify and one to simply "consult" out of view and subject to much greater protections from discovery, so that counsel could bounce facts and ideas off of the consulting expert with reduced concern that they might become discoverable if disclosed to the testifying expert.  Such inefficiencies burden parties that can't afford two experts for every issue, and otherwise unnecessarily drain resources from all involved.

Some litigators thus began stipulating around the obligations to produce draft reports and/or communications between experts and counsel, reasoning that the expenses incurred in doing so rarely yielded a significant, case-breaking moment with which to impeach the expert either in the deposition or at trial.  The amendments to Rule 26(b)(4) (in particular at 26(b)(4)(B) and 26(b)(4)(C)) purport to severely restrict counsel's ability to extract such discovery concerning experts.  That said, they do not eliminate that ability entirely, and one wonders if the amendments the amendments give back with one hand what they have taken with the other by continuing to allow discovery of draft reports or attorney-client communications upon a showing of substantial need, and also freely permitting discovery of attorney-expert communications concerning (a) compensation, (b) facts or data considered by the witness in forming opinions, and (c) assumptions provided by counsel and relied upon by the expert.  In particular, item (c) threatens to become the exception that swallows the rule, as experienced and aggressive trial lawyers looking to undercut credibility will still likely test the limits of what it means for a communication to relate to an "assumption provided by counsel."  Lawyers who follow these issues can watch for the District Courts to be busy defining such boundaries in the near future.

Author

Damian D. Capozzola

Member, EpsteinBeckerGreen, Los Angeles, CA

Co-Author with Walter R. Lancaster of Expert Witnesses in Civil Trials: Effective Preparation and Presentation (Trial Practice Series)

Derivatives expert witnesses are seeing increased demand for work as the aftermath of the financial crisis continues to unfold. These experts are not only being used for advanced analysis but often to merely explain the basics of derivatives, how they work, and how they are used in financial markets. A year before the crisis many parties now interested in such litigation had very little knowledge of these complex financial instruments. Expert witness referral firms are continuing to recruit in this area to keep up with demand.