The October episode of The Paralegal Voice on Legal Talk Network focused on Working with Expert Witnesses and featured guest experts Brad Beehler, Esq. and Candy Reilly ACP. Following that episode, it seemed logical that my co-host Vicki Voisin and I would collaborate on tips for working with expert witnesses for our readers. This article is the result of that collaboration.
Locating, vetting and preparing expert witnesses for trial is a crucial and often exciting part of a litigation paralegal’s job duties. Paralegals can provide substantial assistance when it comes to trial experts, including locating them, identifying and gathering documents for their review, and preparing them for trial.
Obtaining the best possible expert witnesses to support your firm’s allegations or defenses, and ensuring the best trial outcome possible, requires a concentrated and well-coordinated team effort on the part of the attorney and paralegal.
Working with expert witnesses is a complex aspect of litigation, but here are 10 basic tips to get you started:
- Decide if experts are needed as early as possible in the case. Meeting with the attorney in the pre-litigation phase is the best time to do this. The most reputable experts are often booked months in advance. Waiting until the last minute can result not only in difficulty finding a qualified expert, but in much higher expert witness fees for emergency turnaround of case reviews and reports.
- Determine exactly what kinds of experts are needed. In medical cases, it is especially important to hire an expert, usually a doctor, often with the same specialty or sub-specialty training as the doctor accused of malpractice, and who has knowledge of the standards of care in the community where the alleged negligence incurred.
- Thoroughly vet any experts your firm is considering hiring – as well as the opposing party's experts, including via Google and social media sites, such as LinkedIn, Facebook, Twitter, and MySpace. Search any proposed experts' names in your firm’s legal case software and obtain a list of all cases where an expert’s name appears. It might be helpful to contact attorneys who were involved in those cases to get their perspective on the expert. Check your own experts' civil and criminal records to avoid nasty surprises. Ask your own experts if they know the opposing party's experts.
- Keep a database of experts that your firm has worked with (and would work with again), as well as highly recommended experts from other sources, such as listservs; discussion groups; legal, medical and scientific publications; and referrals. Just because you don’t use a highly recommended expert in one case doesn’t mean you might not want to use him in a future case. In addition to their contact information, save experts’ curriculum vitaes (“CVs”) that your firm has received, in a place where you can access them quickly for future reference.
- Immediately ask for potential experts’ rate or fee sheets, CVs and a list of all cases they have provided testimony in. Provide the expert with a list of all parties involved in your case, including hospitals and corporate entities, and ask if they have any conflicts. Don’t reveal any information about your case that has not been approved by your supervising attorney.
- Have your supervising attorney approve all written communications to expert witnesses, including letters and emails, as these may be discoverable. Do not send any materials to an expert that your supervising attorney has not reviewed and approved first. This is critical because unlike correspondence protected as work product, information sent to experts may be discoverable.
- Send materials to experts in well-organized, easy-to-review formats, including indexes and tabs if sending materials in a notebook format. Remember, they are billing for their time, often at very high hourly rates, for case review. Ask the expert what he needs for review. If the expert wants or will benefit from a summary of facts, evidence and/or deposition testimony, work with your supervising attorney to prepare it. Be aware that omission of critical documents may adversely affect the expert’s credibility and testimony.
- Be aware of potential Daubert challenges regarding the relevance and admissibility of an expert’s testimony. Not only obtain copies of the expert’s published research, but find other applicable publications including peer reviews and research by other experts regarding the issue in dispute. Don’t just look for information that supports your expert’s opinion and scientific data, but information that may not support it. You don’t want your attorney to be unpleasantly surprised if the other side produces information that may harm your expert’s testimony.
- The attorney makes the final decision as to what opinions, if any, to obtain in writing from the expert. If one of your job duties is interviewing the expert, prepare questions pre-approved by your attorney, but don’t ask for any written opinions, even short emails, from the expert without the attorney’s instructions. Take detailed, accurate notes during any expert interviews and give them to the attorney for review.
- Keep experts informed about the status of litigation and follow up with them regarding all relevant court deadlines, including submission of expert reports. Establish a good working relationship with your experts and offer assistance that makes their work on your firm’s case go as smoothly as possible.
Bonus Tip from Candy Reilly, ACP, a recent guest expert on The Paralegal Voice podcast "Working with the Expert Witness":
Familiarize yourself with Fed. R. Civ. P. Rule 26 – specifically Rule 26(a)(2) – Disclosure of expert testimony and Rule 26(a)(4) Trial Preparation: Experts and Rule 26(e)(2) Supplementing Disclosures and Responses.