June 23, 2021
Expert Engagement Tips
BY: Andrew Gerrish
In my experience, young attorneys are often responsible for managing experts. This can be a large responsibility. Experts are often vital to a case. But they can be prickly. And their expertise is never cheap.
Consider the simple example of retaining a medical expert for a record review in a personal-injury action. Often the supervising attorney’s direction to the younger lawyer may be nothing more than, “see if Dr. Now can review the medical records for us.” But before contacting Dr. Now, the attorney must understand what is needed from Dr. Now. Unless the attorney understands, the expert can never understand what is expected. If the expert does not understand, there is little value in the expertise. Make sure you know the answers to these questions: Why is the expert needed? What issues are you asking the expert to address? Is this a full review or a limited-scope review? What type of work product are you expecting from the expert? Will the expert be expected to testify if the expert’s opinions are favorable?
When I first contact a potential expert, I always make sure to identify—in writing—who is involved in the litigation. I identify the parties, their counsel, and their relationship to the case. If I know the adverse party’s experts, I identify those experts as well. I always do this to make sure that the expert does not have any conflicts that would prevent the expert from assisting. I always ask experts to confirm whether they have any familiarity with anyone involved or any knowledge of any potential conflict that would prevent them from assisting. Sometimes you need to be specific: “Doctor, I need to know that you have not treated Plaintiff and have not reviewed this matter for anyone else.” I have found that some firms that often do expert-witness work—such as engineering firms—are good about tracking potential conflicts. Doctors are often not good about tracking potential conflicts. Before I engage any expert, I want emails in the file documenting that (1) I asked about potential conflicts, and (2) the expert has indicated that he or she is unaware of any.
If I have been retained by an insurance carrier to defend an insured, given recent state-court developments regarding the cross-examination of experts, I am careful not to disclose the carrier’s identity. If the expert comes to his or her opinion without ever knowing the carrier’s identity, it can help undercut the argument that the expert is beholden to that carrier.
At first contact with an expert, I also make sure to ask about issues that would disqualify the expert for me. This is different than a legal disqualification. For instance, when engaging a doctor, I want to know about any lawsuits and licensing or regulatory issues. In a medical-malpractice matter, if you are engaging a standard of care expert, you need to be thinking about whether the expert would qualify to opine on the standard of care.
At first contact, you should also make sure the expert understands generally what you expect as far as assistance. This is different than suggesting the specific opinion that you need; do not do that. You never want to suggest to an expert what opinion you need. Rather, you need to make sure the expert understands what you want the expert to opine on. Although you never know if an expert will have favorable opinions, if the expert who does have favorable opinions is later unwilling to testify, that expert will not be particularly helpful.
Initially, I also make sure I have an updated curriculum vitae for the expert and the expert’s current rate sheet. And finally, at first contact, I also confirm that the expert will be available to develop opinions in time for applicable deadlines, to participate in discovery, and for trial. An expert who plans on leaving for a six-month mission trip in Honduras might not be particularly helpful.
Once you start sending the expert materials to review, develop a system to keep track of what you sent. It can be difficult and time consuming to go back and figure out exactly what your expert has reviewed. And you do not want to omit sending your expert an important document simply because you have not kept track of what you have sent. Ideally, you should maintain a well-organized list that you can later copy and paste into an expert designation. Make sure everyone is aware of this list and is updating it as appropriate.
Once you have received your expert’s initial opinions and the expert has prepared whatever initial work product you need, keep them engaged as the case proceeds. Often, experts are engaged early in litigation to assess liability and causation. If during lengthy litigation you lose touch with an expert, that expert might be unavailable to you when needed for designation or trial. Do not let that happen. Check in with your experts to keep them updated as the case progresses. Send them discovery responses and deposition transcripts as they come in, not right before a designation is due. Keep experts updated on deadlines. Mail and email letters confirming discovery deadlines, depositions, prep meetings, and trial dates.
Finally, always make sure you give your expert notice of your needs as early as possible. Do not miss a deadline because you asked your expert for something too late. Set alerts to remind you to check in with experts as deadlines approach. And make sure that you hear from your experts confirming that they are working toward approaching deadlines.