A fresh lawsuit lands on your desk. After a quick perusal of the complaint, you decide that you will require the services of an expert. Immediately, several questions come to mind:
- What type of expert do I need?
- How can you keep your expert focused on your scope, schedule, and budget requirements?
- What can you do to ensure that your expert delivers an objective, scientifically defensible work product?
- How will your expert translate their technical analysis into a compelling presentation to the jury?
In this article I will offer some suggestions for you to consider as you ponder these questions.
Scope of the Engagement
What type of expert do you need? Sometimes this is an easy question to answer. If your loss is a structural collapse, one of your experts will need to be a structural engineer. But many times the nature of the expertise that you need may not be so transparent. Instead of thinking in terms of occupations or disciplines, try asking yourself what core issues need to be investigated and then formulate these as objectives. Your objectives should support the development of your legal strategy, but should not be formulated in terms of advocacy. Instead formulate each objective in terms of the fundamental technical question or issue that needs investigation.
For example, consider a toxic tort case in which it is alleged that a contaminant in a food ingredient found its way into a yogurt product. Your client is the food ingredient manufacturer that has allegedly contaminated the finished yogurt product. At first glance you might think you need a yogurt expert. But instead of thinking in terms of expertise per se, think in terms of what objectives support your legal strategy. Potential objectives might include
- Determine whether the contaminant is truly present in the food ingredient and in the yogurt;
- Investigate the manufacturing process and supply chain for the finished yogurt product to determine the source of the contaminant;
- Evaluate the quality control measures intended to prevent contamination of the food ingredient and the finished yogurt product; and
- Assess the potentially harmful effects of the contaminated yogurt.
Each objective suggests a different type of expertise and perhaps a different type of expert. On the other hand, you may find the perfect candidate who can cover it all: a toxicologist with a strong chemistry background and extensive quality control experience in the food products industry. The goal is to identify an expert with the ability and expertise to help you objectively investigate the core technical issues of your case.
Once you have hired your expert and have communicated your objectives, it is important to discuss the scope of work for the investigation, the schedule, and the budget. There is an aphorism in the world of project management that says, "Scope, schedule, and budget: pick any two." The scope of work translates directly into the level of effort, and therefore the labor charge for the investigation. Fast-paced projects tend to require more effort than slow-paced projects with the same scope. Large damage claims may warrant an extensive level of investigative effort; small damage claims will likely not warrant as much effort. It will probably take more than one conversation, but definitely have the conversation about your scope, schedule, and budget expectations. Both you and your expert will appreciate it later.
While being mindful of the schedule and budget expectations, your expert should define the scope of their investigation in a way that identifies and evaluates reasonable alternative hypotheses or scenarios. This is especially important when evaluating causation claims. Testing alternative hypotheses is the hallmark of the scientific method. Whether in federal court or not, you will stand to benefit if your expert conducts their investigation in a manner that meets the Daubert criteria for a sound, scientifically defensible methodology.
The expert may be helpful in refining production requests to ensure that useful technical information is obtained during discovery. In addition to the usual production requests involving documents, correspondence, emails, drawings, and memoranda, your expert may request digital media like photographs, video, or audio files. It is important to seek high resolution digital media, if available. Photographs and videos in particular often unintentionally capture useful information in the distance or at the margins of the field of view. This unintentionally captured information can be missed in low resolution images.
Further developing that theme, we live in a world awash in digital data. Your expert should work with you to identify potential sources of digital records that may inadvertently have captured useful information about the time and place of events. Most industrial machines have some type of automatic control system (read "computer") which includes measurement data and data history. The successful recovery of electronic data may require additional forensic expertise, the cost of which must be balanced against the potential benefits.
As the discovery process gets underway, the time line is an excellent tool to help you and your expert correlate and evaluate preliminary observations about the case. This is also a good way to develop new lines of inquiry or to determine where more information may be useful. A time line can take many forms: it can be a narrative, a table, a spreadsheet, or a graphic. Placing events in a time sequence does not necessarily prove causation, but it does help reveal the story (sequence of events) and can clarify the relationship between events.
There are many other facets of expert analysis that may yield useful insights in an investigation. These include conducting witness interviews, analysis of witness observations, inspection of an accident scene, examination and testing of artifacts, laboratory testing of exemplars, mathematical calculations, or scientific reasoning (inductive and deductive logic). Experts can also assist in preparing you for taking depositions, by highlighting potential questions, or topic areas that are relevant to the ongoing investigation. It can be helpful to discuss these options with your expert and to assess the costs and benefits of techniques. Each investigation has its unique aspects which may favor one technique over another.
Finally, a most important aspect of the investigation process is frequent communication between you and your expert. Status reports in the form of telephone conversations or face-to-face meetings may best suit your needs. As discovery unfolds and your expert's investigation proceeds, new facts are learned which may influence the direction of both the litigation and the investigation. Frequent communication about intermediate findings will keep you both on track and increase the likelihood of receiving an expert work product that answers the pertinent technical questions.
Disclosure of Expert Opinions
Because you and your expert are communicating frequently, you should have a good sense of how your expert will develop their preliminary observations into expert opinions with a solid foundation. Certainly you and your expert should schedule a specific conversation to discuss potential opinions before a written document is created. Your expert's analysis is constrained by the facts of the case and the fundamental principles of their discipline. If this analysis does not assist your legal strategy, there is, of course, no need for a formalized report.
Depending on your needs, you may request a written report. If so, be sure to explain your preferences on whether you wish to see a draft report, and, if so, how the expert should handle the draft document. The expert often finds it helpful to have the attorney review a draft of the report because there are legal nuances in factual statements (e.g., the use of the proper legal name of a corporate entity) that may fall outside the scope of the technical issues investigated by your expert. Fact-checking is always appreciated.
Your expert can also be of assistance in evaluating the opposing expert's report. This can be a useful way to learn of any unexpected strengths or weaknesses in their analysis. And, without a doubt, this is a great exercise for preparing your expert for cross-examination.
The legal world is different from the technical world, and it may be helpful to remind your expert of that fact. Whether it is in deposition, trial, or arbitration, there are certain professional expectations your expert must meet, which need to be communicated to your expert. For example, if opposing counsel has a tendency to ask long, complex questions, the expert should wait and listen to the entire question before responding. The expert must resist the temptation to anticipate the question or to interrupt it; otherwise the result is a muddled and confusing transcript.
Another aspect of helping your expert to prepare for testimony is to ask them some sample questions, especially questions regarding what you perceive to be the vulnerable areas of your legal strategy. Be sure to also identify and explain any key legal phrases that may arise in the course of cross-examination. As a professional engineer I have been surprised more than once to discover that a common phrase used in ordinary discourse can have a very specific and decidedly different meaning in the law.
Finally, there is the difficult issue of technical jargon. Technical experts can speak a language all their own. After all of the hard work that has gone into conducting an objective, well-founded investigation, it would be a disservice to your legal strategy to let the findings get lost in a sea of jargon. Challenge your expert to translate their work into simple, everyday language. Help them select exhibits that will assist in presenting their opinions.
Practicing the law presents all sorts of challenges for you. The addition of an expert should help, not hinder your efforts. As you evaluate a specific case, think about the fundamental technical questions that need to be addressed and select experts who can objectively seek their answers. Engage your experts in the discovery process and debate with them the relevance of the evidence. Frequent communication is important so that the trajectory of the investigation, and perhaps the litigation, can be adjusted as new facts are learned. Once the hard work of the expert investigation is done, the value of the work product must not be lost due to poor communication. Work with your expert to help them present their work in a simple, direct, and compelling way.