WINNING THE BATTLE-OF-THE-EXPERTS:
PREPARING EXPERT OPINIONS & REPORTS

EXPERT CASE ANALYSIS

A good lawyer prepares the expert well. A good expert prepares the lawyer well. Working as a team, each may learn important lessons from the other and combine in a winning effort for the client.

A. Working With the Expert: A Team Approach

1. Learning from the Expert

Before the expert may teach the case to the jury, he or she must teach the case to the attorney. Long before designating the expert to testify at trial, lawyers may benefit greatly by seeking the expert's advice early in the preparation of a case. In so doing, the attorney may save valuable time and effort in achieving a proper understanding of rather complex and technical subject matter. Moreover, by consulting with the expert at the start, the overall theory of the case may benefit from the enlightenment obtained. Indeed, it is far easier for the expert to help craft the theory of the case than to enter the litigation after this theory has already been constructed and modify his opinions accordingly.

2. Teaching the Expert Your Case

When first consulting with the expert, the attorney must provide the expert with a firm understanding of the facts underlying the cause of action. Whether before or after litigation has been instituted, the attorney must supply the expert with proper documentation relating to the case, a comprehensive overview of the facts, and ample opportunity to meet with counsel to discuss important issues. During this process, the attorney must refrain from "instructing" the expert as to the desired opinions or conclusions. Such instructions are not only improper, they may offend a reputable expert and create a poor working relationship.

When reviewing the case with the expert, the attorney must also refrain from painting a rosy picture of the underlying facts. If there are adverse facts which are discoverable by the other side, they must be disclosed to the expert. The attorney must raise questions which opposing counsel may be expected to raise on cross-examination. For the expert to be truly helpful, she must be capable of overcoming adverse facts and facing hard questions. These questions should not appear for the first time on cross-examination.

For this reason, the attorney must supply the expert with substantial materials relating to the facts of the case. However, because anything provided to a testimonial expert may be discovered by the other side, the attorney must be careful in selecting these materials before providing them to the expert.

a. Materials to Provide the Expert

One must supply the expert with all documents relevant to the opinions or issues on which she will be expected to testify. Considering the substantial expense involved in an expert's review of documents, these documents should be conveniently organized to minimize the time which the expert will take in review and to highlight important facts. If litigation has already been filed, relevant pleadings and discovery material should be provided to give the expert an overview of the issues in dispute and basic allegations.

b. Materials to Withhold

Under very liberal discovery rules, any material provided to an expert may be obtained by your opponents. For this reason, you should not provide the expert with anything which you do not want your opponent to see. This is particularly true in the case of attorney work product or privileged materials. Such privileges and immunities will instantly be waived by sending such documents to the expert for review.

Even when sending fully discoverable documents, attorneys must be careful not to write marginal notes or highlight these materials unless they are willing to show such annotations to opposing counsel. Indeed, all correspondence sent to the expert must be written not only for the expert herself, but for the eyes of opposing counsel. Thus, a letter encouraging the expert "to draw the conclusion that the defendant's product was unreasonably dangerous" will provide opposing counsel with excellent grounds for impeaching an expert ultimately rendering such an opinion in court. Furthermore, the attorney should not provide an extensive factual recitation in such correspondence and should refrain from a listing of issues. Such background is best reserved for oral telephone conversations or face-to-face conferences, leaving nothing for discovery by opposing counsel.

B. The Expert Report: When to Prepare and How?

Not only may anything given to the testifying expert be discovered by opposing counsel, but anything written by testimonial experts may be discovered as well. Thus, before requesting a written report from the expert, the attorney must discuss the expert's findings to ensure that the ultimate report does not contain any damaging material or references. This problem cannot be rectified by having the expert submit a preliminary draft of the report since such drafts may also be obtained by opposing counsel.

Since anything the expert writes may be held against that witness, one must determine whether to obtain an expert's report at all. In many instances, such a report is a powerful settlement tool and should be prepared with that objective in mind. In other cases, where settlement is less of a concern, an attorney may not wish to request such a report. If the opposition is sufficiently interested in learning the substance of expected expert testimony, opposing counsel may propound appropriate interrogatories or depose the expert. Even where an expert report is required by the rules of court, see Fed. R. Civ. P. 26(a)(2)(B), an attorney seeking to satisfy the discovery rules may provide a report devoid of unnecessary elaboration which provides sufficient flexibility for the expert's later testimony.

If the attorney determines that an expert report should be prepared, he must work closely with the expert to ensure that its contents contain helpful information and, more importantly, do not contain damaging information. In a face-to-face meeting, and not in written correspondence, the attorney should provide the expert with detailed specifications of the report's contents based upon the expert's findings. In that meeting, the expert should make a written list in her own handwriting of the desired contents. In this way, should opposing counsel discover these notes, they will only be perceived as the expert's own preliminary thoughts regarding the case. This should eliminate the production of any damaging or embarrassing notes or correspondence in discovery.

C. Responding to Interrogatories & Preparing for Deposition Testimony

When responding to discovery relating to issues on which the expert is expected to testify, the attorney should not respond alone. Work with the expert to craft effective discovery responses consistent with the expert's understanding of the case and expected testimony. It is also essential that expert and attorney work together in preparing for the deposition. Regardless of the number of times the expert has testified, one should always prepare the expert with the Ten Commandments of Testimony:

1. Be truthful.

2. Listen Carefully to the Question -- and wait until the entire question is asked.

3. Answer Only the Question That Was Asked.

4. Don't Volunteer Information That Was Not Asked.

5. Take Your Time -- Think Before Answering Each Question.

6. Don't Guess at the Answer -- if you don't know, say you don't know! If you don't remember, say you don't remember!

7. Ask for Clarification if you don't understand a question - never attempt to answer a question that you don't really understand.

8. Be Cooperative, But Don't Be Forced into an Inaccurate Answer.

9. Don't Fight with the Questioner or Show Anger or Impatience with the Questioner - remember, lawyers are trained to win such fights and will interpret any uncooperative "attitude" on your part as a sign of weakness. Keep your emotions in check!

10. Ask for a Break if you feel you need one.

Although these commandments apply to all witnesses, reviewing them even with the seasoned expert will provide a productive forum for discussing deposition strategy and developing a firm understanding of the manner in which the expert should testify. Thereafter, review the substance of expected questions, conducting your own "deposition" of your own expert! Despite the many hours the two of you have spent together, certain answers may surprise you. With proper preparation, you should be able to minimize or eliminate such surprises in the deposition itself, where you have no ability to keep the resulting damage off of the record.

D. Trial Preparation

One must prepare the expert for trial in much the same way as preparing for the deposition. Before meeting to prepare trial testimony, the expert should be instructed to review thoroughly all pertinent documentation, any reports which he has prepared, and the transcript of any earlier deposition of that expert. In preparing for trial, the attorney should not only review the ground rules for testimony and the substance of the case, she should really put the expert to the test in the form of hard-hitting, if not aggressive, cross-examination. For maximum effect, the attorney may wish to pursue such questioning spontaneously without first announcing that this is merely a "role-playing" exercise. You must determine how the expert will stand up to pressure and address what may be the weakest aspects of your case in a strong manner. During this exercise, pay attention to the expert's use of language, the eye contact which the expert makes with the examiner and with those sitting in the place of jurors, and overall demeanor. While this will not be the first time that such fundamentals of verbal and non-verbal communication will have been addressed, these issues are particularly important just before show time.

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