Expert Article Library
Selecting And Retaining Experts
By Jeffrey S. White Email: JWHITE@Orrick.com
Having received this directory listing so many experts in so many specialties, the reader might ask "How do I know which expert to select?" and "What do I do once I have selected my expert?" The purpose of this article is to provide answers to those questions so that the expert's work is done in an efficient, confidential, cost-effective and helpful manner.
How to Select an Expert: Develop a List
Even though a lawyer will delay deciding whether an expert will testify until fairly late in discovery, that lawyer may need to employ an expert as a consultant very early in the litigation, often even before the complaint or answer is filed. In this context, the consultant can assist counsel in determining whether a case should or should not be filed and if filed what theories of liability to allege in the complaint. In some cases, particularly highly technical ones, the filing of a complaint without consultation with an appropriate expert will not only damage the credibility of counsel and the case, but might also result in the imposition of sanctions in Federal Court under Rule 11 of the F.R.C.P. or under State law, such as, in California, Code of Civil Procedure Section 128.5.
The criteria for selection of consultant or testifying expert are much the same. Counsel should first determine whether there are specific subspecialties involved in the case that are of importance. For example, in a products liability case, involving a table say, an expert who has been involved with design, production, manufacture or use of table saws would be a more appropriate candidate to be an expert witness than simply a mechanical engineer who has not been so involved.
Consider using an individual who has formal or informal teaching experience. After all, what the expert does in court is teach the jury what the case involves from a technical standpoint and to persuade them to accept your client's position. Even if the consultant is not going to testify, one of the consultant's functions will be to teach the attorney about the subject matter of the litigation so that the lawyer can persuasively cross-examine the opposing expert.
Needless to say, the attorney should involve his or her client at every step of the selection and retention process. You should determine how much money your client is willing and able to spend for the expert or consultant. In order for the attorney to recommend an appropriate budget, the attorney must evaluate, at least on a preliminary basis, how much is at stake in the lawsuit. The client's approval should be secured before any expenditures are agreed to or made to the expert.
You should develop a list of prospects. Some of the steps which you may want to take to evaluate the prospects are to talk to other lawyers who handle comparable litigation including lawyers outside of your geographical area. Consult the faculty directories of well-regarded universities. Professors may either be available themselves or able to direct counsel to other authorities in the relevant field. Your client may well be acquainted with the experts in its industry. In a medical malpractice case, for example, the defendant doctor or hospital should know who the recognized experts are in their field. One caveat in this regard is that the expert should not be economically, socially or professionally involved with your or the client.
For each expert on your list, you should collect and review all relevant biographical information including professional directories, faculty descriptions and firm literature (in the case of experts employed by a consulting firm).
You should review any available deposition or trial testimony given by the expert. Talk to attorneys who have either retained the candidate or opposed the expert to find out how well the expert does in pre-trial research, depositions and trial.
Once the list of potential candidates has been narrowed to a manageable number, each candidate should be personally interviewed by the attorney. While there are few absolutes in litigation, one absolute is appropriate when selecting an expert. Never retain an expert without a personal interview. Before the interview, a carefully selected packet of introductory materials should be sent to each candidate. Since all of the material reviewed by the expert may be subject to discovery (more on that later), only materials from the public record should be sent. These materials, such as responses to interrogatories, requests for admissions, complaint and answer, and the client's recent materials, counsel should find out whether or not the expert will charge for reviewing these preliminary materials and attending the meeting.
During the course of setting up and attending the meetings, you should learn several things about the candidate. For example, if you had difficulty setting up the interview with candidate, imagine how difficult it might be having access to the expert as the case proceeds. If the candidate reviewed and assimilated substantially all of the materials that counsel sent, then you might conclude that the candidate is diligent in her work.
At the beginning of the meeting, you should tell the candidate you expert that all matters discussed during the meeting will be treated as confidential (including the fact of the meeting). Discourage the candidate from taking notes, but avoid instructing the candidate in that regard. This is because such instructions are often the subject to embarrassing questions by opposing counsel at depositions and at trial. Another approach is to advise the candidate to keep an open mind until the candidate has completed her investigation and analysis. Some attorneys choose to be more blunt and give the candidate a primer on the dangers of putting pen to paper before work is completed and final opinions are formed.
Early in the meeting you should advise the candidate that you are interested in retaining an expert whose role initially will be to review some facts and form an opinion on certain issues. The chosen expert should be told that his role will be to educate counsel in the candidate's are of expertise to enable counsel to prosecute or defend the case.
During the meeting, you should have a defined agenda. You should examine the candidates about their credentials using their resumes as a starting point. Try to get a sense of how articulate each candidate is and how the candidate would relate to a judge or jury. Find out if the candidate represents principally plaintiffs or defendants. Certainly, a "plaintiff's" expert testifying for a plaintiff will be more subject to impeachment for bias than will be an expert who testifies for both plaintiffs and defendants. Ascertain how much of the candidate's time is spent in consulting or testifying in connection with litigation. If the candidate is a "professional witness," he or she may be more subject to cross examination than would a "real world person" working in industry. On the other hand, if the witness testifies frequently, he or she likely will be more sensitive to the litigation process and better able to withstand the rigors of a lawsuit.
During these interviews, the existence of conflicts should be explored. Such conflicts can arise from the candidate having had social or professional dealings with the opposing party or its law firm. Such dealings with opposing lawyers could include having been represented by them or cross examined in a deposition or a trial. Such contact could also include interviews by opposing counsel about the present case. Well recognized experts are often contacted by both sides of the case as candidates for retention as experts or consultants.
Of major importance is the candidate's fee structure. It is important at the outset of the relationship with your expert to establish the expert's fee. Specifically, you should determine such things as the billing rates for all of the candidates and all of their assistants, their policies on travel time, time spent in deposition and at trial, and their frequency of billing. of course, your expert is not permitted to work on a contingency basis for to do so not only violates many local canons of ethics but also established the most fundamental type of bias, a financial interest in the outcome of the case. Usually, your expert will provide services at an hourly rate during discovery and trial preparation and a flat rate for trial days (e.g., $200 per hour and $1500 per day for trial appearances).
It may be appropriate at some point in the meeting to bluntly ask the candidates if, based upon the materials they have received and the facts they have heard and their experience, they have a preliminary opinion in the case. If that opinion is unfavorable to the interviewing attorney's case, then termination of the interview may be appropriate. On the other hand, if the preliminary opinion is tentative but favorable, then the interviewer may ask what additional facts might strengthen the favorable opinion or indeed change the expert's favorable opinion to an unfavorable one. You can determine if the expert is sensitive to the weak spots in your case but has ideas as to how to strengthen those facts of the case. On the other hand, if the candidate appears to be a "hipshooter" who quickly takes firm positions based only on the minimal materials that you sent to the candidate, then you might decide that the expert is simply attempting to obtain the engagement at all costs rather than to provide honest opinions.
There is considerable value to the process of interviewing candidates. Not only will you have the opportunity to evaluate each individual candidate and to compare the candidate to the others being considered, but those interviews will also provide you with the opportunity for brainstorming many issues in the case. The results of that brainstorming could serve as a basis for providing ideas or guidance to the consultant-expert ultimately selected.
After the Interview
After you have completed the interviews, a substantial amount of follow-up work is required. References and credentials should be checked. Such a check should include verifying information on the curriculum vitae and communicating with attorneys for whom the candidate has worked.
Once you have done your due diligence, a file or 3-ring binder should be prepared on each candidate which should include the curriculum vitae, articles published, a description of previous work (litigation or otherwise) in the area of expertise, and a contemporaneous memorandum of the attorney's observations about the candidate, both during the interview and as a result of the reference checks. These binders may then be presented to the client with the attorney's recommendations as to which expert or experts should be retained and whether the retention should be as a non-testifying consultant or as a trial expert.
Consultant and Expert
Counsel may decide that the retention of two (or more) experts for the same issue are appropriate. One expert can serve the function of a consultant, and the other the testifying expert. While none of the initially retained experts may ever testify in the case, it may be wise to decide at the beginning of the case that one of the candidates will serve as a consultant whose opinions and work product will not be discovered by opposing counsel.
The consultant can perform a valuable role for the attorney. He or she can assist you in the formulation of a complaint or recognizing defenses to a lawsuit. By involving the consultant early in the litigation, the consultant becomes familiar with the facts as they are developed which can better prepare the expert to testify and to point out new themes for you to investigate.
The consultant can assist you in formulating and executing a written discovery plan. The consultant can aid you in drafting interrogatories and requests for production of documents in order to generate the necessary materials for the expert to formulate her opinion. As materials are received form the opposing party of third parties, the consultant can assist the lawyer in reviewing those materials.
Another important role for the consultant is in assisting counsel in preparing for the deposition of law or expert witnesses. With regard to factual witnesses, you should ask the consultant what questions he or she would like you to ask the fact witness. It goes without saying that your consultant can be extremely helpful in assisting you in taking the opposing expert's deposition. Indeed, assuming that your expert will testify, you may want to have the consultant attend the deposition. Your consultant can not only suggestion questions, but can assist you in understanding the words and phrases testified to by the deposing expert and to assist you in following up on responses given by the opposing expert.
During the course of the litigation, your consultant can provide useful assistance in possible settlement negotiations. Experts, particularly economic experts, can assist you in valuing the potential claims so that you can advise your client as to what an appropriate settlement posture might be.
The consultant can also explore alternative theories and hypotheses and perform research projects. If the results of that research or opinions formulated by the expert are unfavorable, then the attorney can abandon those theories with some confidence that the results of such work will not be discovered.
On the other hand, if the search performed yields results which support your position, then you can ask the testifying expert to perform the same research well knowing that the results will be favorable to your position in the case or, if you are prepared to have all of the consultants work become discoverable, provide the results of that work to the testifying expert.
Ordinarily, counsel will attempt to ensure that a non-testifying consultant's work is not subject to discovery. To accomplish this, counsel should insulate the consultant from the trial expert. Thus, the result of the consultant's work should not be reported to the trial expert or possible [sic] even to the client. Ideally, the trial expert would not even be told about the existence of the consultant.
The Retention of the Expert
In approaching the retention of the expert who counsel has selected to testify, counsel must assume that all materials provided to the expert, every document generated by the expert, and all materials circulated among the expert, counsel and the client, every item in the expert's file, as well as the content of every conversation among the expert, counsel and the client, or anyone else concerning the expert's work in the case, will be discovered. Therefore, from the very inception of the relationship between counsel and the expert, care must be taken to minimize the generation of written material that could be used to impeach the expert.
The Retention Letter
In most, if not all cases, the consultant-expert should be retained by you rather than by your client. This will give you better control of the relationship. Similarly, retention by counsel of the consultant will better ensure that the work product doctrine will attach to the work performed by the consultant.
The first rule regarding retention letters is that counsel should assume that the letter will find its way into the hands of opposing counsel. Therefore, the retention letter should be drafted with care. The letter should be sport, to the point, and contain only the fundamental points of employment. These points should include the expert's fee structure, the rate of billing, the manner of billing, and initial instruction on what you wish the expert to do. Of course, the letter should commit the expert to treat as confidential all aspects of the engagement. Thus, the letter could read as follows:
Dear Dr. Jones:
This letter will confirm that I have retained you as a consultant in the above-referenced case. You have agreed that the rate you will charge in this case will be $200 per hour, $1,000 per day for depositions, and $1,500 per day for trial appearances. Your statement should be forwarded to me on a monthly basis. You have advised me that this fee rate is in accord with what you normally charge for such services.
You have agreed that until such time as you may be asked to testify, you will maintain in the strictest of confidence all aspects of this engagement including, but not limited to, all materials reviewed, generated or received by you or sent by you to this firm or by our client. You will refrain from speaking with anyone about this matter and you treat all communications between my client and yourself or between this firm and yourself as privileged.
Very truly yours,
Approved and agreed:
Jack Jones, M.D.
By omitting references to any facts or materials provided to the expert in the retention letter, that letter will not provide grist for the cross examination mill. On the other hand, you should be aware this short letter provides little or no guidance to the expert as to what work the expert is expected to do and the budgets established for that work. Such matters can be worked out in person with the expert, either verbally or using a blackboard.
Counsel should maintain an inventory of all materials provided to the expert in connection with the case. Thus, if and when the expert is deposed, both counsel and the expert will know which documents need to be produced to opposing counsel.
The expert should be provided with all relevant documents or facts which the opposing counsel either has or will obtain during the course of the litigation. Such documents and facts should consist not only of the "helpful" but also the "harmful" ones. In this way, the expert will be able to provide counsel with ideas on how to rebut harmful facts and will be better able to respond in deposition or trial to hypotheticals containing unhelpful facts. Once again, counsel should always assume that all documents given to the expert are discoverable unless counsel has elected to have that expert serve only as a consultant.
The expert should be advised that no reports or studies should be prepared without the prior approval of the designated attorney and that any work product so prepared should be factual and not express any opinions or conclusions. If opinions or conclusions are expressed in writing, all of the back-up data should be clearly identical. All materials prepared by the non-testifying expert should be labeled "Privileged and Confidential - Prepared at the Request of Counsel." For this purpose, the use of a rubber stamp may be appropriate.
The expert should be instructed to exercise extreme caution in any interim views he or she forms, and any notes that would ordinarily be prepared and kept in his or her work. Casual, unthought-out comments can, in the hands of a skilled opponent, provide sufficient impeachment materials to destroy the effectiveness of your expert.
The expert should be asked for the names of the people who will be assisting the expert on various projects. Counsel should insist upon meeting with all of the expert's assistants who will be working on the case so that they can be instructed on issues of confidentiality, document control and document generation.
As you can see, the selection and retention of experts is a serious matter requiring a great deal of thought and work. Using this directory and following the steps suggested in this article can make your job somewhat easier in finding the right consultants and experts and making sure that they are used as economically and efficiently as possible.
1. Opposing counsel has a much broader right to obtain discovery from a testifying trial expert than from a consultant-expert. Thus Rule 26(b)(4)(A)(i) of the Federal Rules of Civil Procedure (F.R.C.P.) allows discovery of the subject matter of the expected testimony of a trial expert, the substance of the facts and opinions to which the expert may testify, and the grounds for each opinion. ON the other hand, discovery of a non-testifying expert (hereinafter sometimes refereed to as "consultant") is allowed only if the expert made a medical examination of a party or "upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means" F.R.C.P. 26(b)(4)(B).
2. Of course, if opposing counsel can make a showing of "exceptional circumstances under which it is impracticable for the parties seeking discovery to obtain facts or opinions on the same subject by other means" (F.R.C.P. 26(b)(40(B)), then that consultant's opinions may be discoverable. This could occur where, for example, in a products liability case a test is performed on the device at issue and that test destroys the instrumentality.
3. In this regard, see Eliasen v. Hamilton, 111 F.R.D. 396 (N.D. Ill. 1986) and Heitmann v. Concrete Pipe Machinery, 98 F.R.D. 740 (e.D.Mo. 1983) for examples of how reports of non-testifying consultants can be discoverable if given to and/or relief upon by the testifying expert.
4. Of course, if counsel has decided that the expert will not testify and is reasonably certain that the attorney can avoid the problems raised by F.R.C.P. 26(b)(4)(B), then such caution may be unnecessary. However, even in that event, the consultant should be instructed as to the importance of confidentiality, and specifically told not to discuss the consultant's work on the case with anyone.