Recently, a lawyer's group discussed in quite a bit of detail, the topic of what criteria a lawyer should consider when retaining an expert witness. While it is important for a lawyer to find a good expert to work with in litigation, it is also important for an expert to find a good lawyer.
My 33 years as a warnings expert has taught me that there are at least five rules that should help the expert maintain a healthy relationship with the lawyer.
1. Clear Statement of Objectives, Timetable and Fees. The attorney should tell the expert very clearly what the facts of the case are and for what area(s) of expertise the attorney is seeking
assistance. The best time to hire an expert is early in the case prior to the taking of
depositions (if possible) so that the lawyer will question witnesses in areas important to the
expert and the development of facts that may be useful in developing or supporting expert
opinions. Regardless, the expert needs to know the timetable for the trial and should avoid being hired at the last minute (unless the attorney is seeking a rebuttal witness). Obviously,
there should be a clear understanding of the expert's fee structure, retainer requirements
and payment schedule. A written letter of retention is best for both parties to avoid any later
misunderstandings about the expert’s assignment and payment procedures.
My 33 years as a warnings expert has taught me that there are at least five rules that should help the expert maintain a healthy relationship with the lawyer.
1. Clear Statement of Objectives, Timetable and Fees. The attorney should tell the expert very clearly what the facts of the case are and for what area(s) of expertise the attorney is seeking
assistance. The best time to hire an expert is early in the case prior to the taking of
depositions (if possible) so that the lawyer will question witnesses in areas important to the
expert and the development of facts that may be useful in developing or supporting expert
opinions. Regardless, the expert needs to know the timetable for the trial and should avoid being hired at the last minute (unless the attorney is seeking a rebuttal witness). Obviously,
there should be a clear understanding of the expert's fee structure, retainer requirements
and payment schedule. A written letter of retention is best for both parties to avoid any later
misunderstandings about the expert’s assignment and payment procedures.
2. Experts must be allowed to behave as experts. Although this sounds obvious, attorneys must not prevent an expert from performing his or her due diligence (i.e., conducting
primary or secondary research necessary to the development of opinions). An expert should
never allow an attorney to determine what materials are important, or worse yet, e.g., what
specific quotations in a deposition are important for an expert to review. The attorney is
hiring the expert for their expertise and should allow them to use that expertise in their job.
3. There should be NO surprises for either party. While experts are performing their due diligence, they should communicate frequently with their client(s) and keep them informed
both about their findings and the amount of time they are expending in their preparation.
Similarly, the attorney should keep the expert informed about new developments in the case,
the availability of new depositions, exhibits or other materials, changes in the schedule, etc.
both about their findings and the amount of time they are expending in their preparation.
Similarly, the attorney should keep the expert informed about new developments in the case,
the availability of new depositions, exhibits or other materials, changes in the schedule, etc.
4. Pay the witness in a timely manner according to the exact terms in the retention agreement. It is amazing how many attorneys in my 33 years as an expert have dogs "that
have eaten their invoices.” Experts expect their client to be the attorney or law firm that has
retained them and should not have to wait for the law firm to be reimbursed (e.g., by an
insurance company) for the expert to be paid in accordance with their retention
agreement. Experts should not be distracted from their primary role as an expert by such financial issues.
5. Finally, don’t forget to tell the expert the disposition of the case. Months (or years) should not go by without an attorney telling the expert if the case indeed settled.
By Dr. Gerry
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