In previous articles, I covered the legal theories for establishing damages for the various intellectual property claims, and the ways that trial counsel can use economic expert witness testimony to build a plaintiff’s case for damages. In this summary, I recommend best practices for engaging and working with expert witnesses. In-house counsel can use this information to ensure their trial counsel obtains the maximum benefit of an expert for the case.
1. Engaging experts early
In some fields or geographical areas, a particular expert may be “the best” for a litigation. Retaining that expert early is smart, even if work will not start for some time.
Retaining the expert early can sometimes help trial counsel prepare the case, as counsel and the expert can identify together issues that the expert must consider in forming an opinion. The expert can help counsel frame discovery requests and identify people to depose. This gives counsel time to obtain information for the expert before expert reports (and relevant materials) are due. Evaluating issues early helps both sides determine whether to continue with litigation. An economic expert can evaluate the plaintiff’s potential damages claim, analyzing whether the case is worth continuing, or advise the defendant of potential exposure if judgment is entered against it. An early damages opinion can help both parties decide a settlement value.
Where the plaintiff understands the issues necessary to meet the burden of proof prior to litigation, and has the information for that analysis, the plaintiff can retain an expert to weigh whether a case is worth bringing before filing the litigation. For instance, an expert, along with patent counsel, could help a company confirm patent infringement. Where the plaintiff’s documents must help prove a damage recovery theory, the economic expert can analyze those issues in advance.
Another option is retaining an expert in a consulting capacity. The federal rules of discovery only permit discovery of testifying experts’ opinions and the materials they consider. Counsel can use consulting experts freely without discovery to help frame discovery, spot factual issues, “test-drive” theories and prepare testifying experts for trial. Counsel can also use the services of a consulting expert who is not suitable as a testifying expert.
2. Locating experts
Training or experience can qualify people as experts. For training-based expertise, good resources are academics with knowledge of a methodology (e.g., economic valuation of a business) or an industry’s workings (e.g., food processing methods). Counsel may engage persons with extensive industry experience (e.g., qualified financial analysts) on an ad hoc basis. Expert consulting firms are available in certain fields and expert search services can help locate expert witnesses. For industry experience, the client’s networks may contain suitable experts. The expert’s published materials may provide information regarding expertise and capabilities, and counsel should review these, as they will be produced during expert discovery.
In hiring experts, counsel should consider the appearance of bias. Counsel should not present testimony from the same witness in multiple cases and should avoid influencing experts’ opinions. For example, where an expert is analyzing a technical issue, counsel should only provide information essential for the analysis. After the expert reports the results, counsel can further explain the party’s factual background. Using testimony of the plaintiff’s competitor as an expert can avoid bias, as fact-finders may consider this compelling and objective. Additionally, fact-finders often consider experts who testify on behalf of both plaintiffs and defendants more credible.
3. Vetting experts
The expert should confirm availability for the anticipated trial date and that he or she (or the consulting firm) does not work with the opposing party.
Counsel should consider what documents the expert will need to review. If these documents are proprietary or confidential, a protective order must be entered into the matter to guide handling of these documents in discovery, as materials the expert considers must be produced. Where counsel retains a consultant or expert before litigation, the expert should sign a confidentiality agreement.
Counsel should conduct a background check to investigate the expert’s credentials and publicly available persona. An opposing party might find fodder for cross-examining an expert on blogs, Facebook or other written records. Counsel should consider whether publicly available information could tarnish the expert’s reputation or undermine the expert’s testimony in the jury’s eyes, or be used to preclude the expert’s testimony under a Daubert motion.
Counsel should check references for experts who have previously testified, directly interview the expert (at least by video conference), and suggest potential scenarios in an interview to test the expert’s prowess. Interviews allow counsel to observe an expert’s demeanor and style in expressing opinions. Counsel can submit test questions and identify areas of disagreement in approach to issues. In a first encounter, good experts ask questions demonstrating solid knowledge of the issues. The expert becomes one face of the party for the jury, and counsel should feel comfortable working with the expert. An effective expert is an independent, critical thinker, not merely a mouthpiece.
Counsel should request an estimate for the expert’s work, or a budget with an approximate timeline to completion. The expert’s ability to provide this may offer clues about the depth of his or her knowledge of the issues and experience with litigation. Lower-than-expected budgets may reflect unfamiliarity with the issues, while higher-than-expected budgets may reflect inefficiencies. Counsel should feel free to question the assumptions in the budget analysis to determine what factors will contribute to the expert’s costs, to ensure both sides understand the scope of work requested.
The expert’s engagement letter should expressly address the expert’s fees and handling of costs. Some experts offer capped fees for long days, while others require enhanced fees for deposition or trial and first-class airline tickets. A search firm may charge an hourly surcharge rather than a finder’s fee for the expert, which can add up quickly. Counsel should understand whether the expert will perform all work on the case or whether, as is common with economic experts, a support team will conduct the initial analysis at a lower rate, with the expert reviewing, changing or supplementing the analysis as needed. In this arrangement, counsel should ask for the support team’s credentials to ensure all members are qualified. Counsel can also require that the expert “check in” at routine intervals to keep the spending and budget on track.
Using best practices in identifying and engaging expert witnesses will enable counsel to select the best expert possible. This decision can have a significant impact on settlement negotiations and at trial.