A Primer on When to Use Expert Witnesses and How to Find Them

Expert Evidence Report® Reproduced with permission from Expert Evidence Report, 13 EXER 21, 01/07/2013. Copyright ஽ 2013 by The Bu- reau of National Affairs, Inc. (800-372-1033) http://www.bna.com USE OF EXPERTS CIVIL LITIGATION A Primer on When to Use Expert Witnesses and How to Find Them BY GREG EASTMAN,VANDY M. HOWELL, AND mony can be such an important factor, there can be much at stake for litigators in the process of finding and MARIA SALGADO selecting an expert. Clients, too, have recognized the n high-stakes litigation, expert witness testimony is importance of choosing the expert witness best suited often a necessary and critical part of litigation strat- for the case, and the expert selection process has in- I egy. Experts can offer testimony to address unique creasingly become a joint enterprise between outside questions or facts that are central to liability issues. litigators and their in-house counterparts. They are also almost universally used when it comes to Therefore, both in-house counsel and their outside at- quantifying damages. Because expert witness testi- torneys should be informed about the best practices in finding and selecting expert witnesses. In this article, we discuss the various roles that experts can play in liti- Greg Eastman and Vandy M. Howell are vice gation, and some of the key issues one should consider presidents, and Maria Salgado is a senior when searching for the most effective expert, a decision manager, of Cornerstone Research, which that ultimately can have a significant impact on settle- provides economic and ﬁnancial analysis to ment negotiations and trial results. attorneys in all phases of commercial litigation and regulatory proceedings. Eastman has directed a number of large case Determining Whether You Need an Expert, teams with multiple experts, and can be and if So, What Kind reached at [email protected]. How- ell has extensive experience in class certiﬁ- Determining if an expert is needed, and if so, what cation, and can be contacted at vhowell@ kind, are the two questions that attorneys must address cornerstone.com. Salgado is experienced in before beginning a search for an expert witness. An ex- complex business litigation, and can be pert will typically be needed when the facts and issues reached at [email protected]. of the case are not easily comprehensible, when the facts of the case require the trier of fact to reach an COPYRIGHT ஽ 2013 BY THE BUREAU OF NATIONAL AFFAIRS, INC. ISSN 1536-1896 2 opinion or conclusion that is not easily attainable, and field. In these situations, the expert may be providing when the case issues are sophisticated and the judge is his or her findings of critical facts for the jury’s consid- not well-versed in the relevant concepts. eration. These expert roles can be narrower in scope, Experts play a wide variety of roles in different types but no less critical. In some cases, multiple experts are of cases, and one needs to consider the specific goals hired, providing different key opinions and an ultimate for the expert testimony before starting a search. In assessment of the facts. some cases, the key liability questions revolve around a A third role that expert witnesses play—one of the particular science or study. For example, in a monopo- most commonly used in litigation—is that of the dam- lization case, the key liability questions might be to de- ages expert. The extent of harm that can be attributed fine the scope of the economic market and to assess to an alleged wrongful act is almost always subject to whether certain behaviors in the marketplace were an- dispute, and experts can be essential in analyzing that ticompetitive. While the law provides some structure critical question. Damages theories can be challenging for considering these questions, they are fundamentally to bring to the judge or jury in the absence of an expert economic questions. Testimony from an economist can witness, as they more often than not require some esti- lay the framework that should be used to assess the mation of a world ‘‘but for’’ the allegedly wrongful be- question based on the facts of the case. havior. In that ‘‘but for’’ world, would plaintiffs have In another example, a key liability hurdle in a patent been better off? If so, by how much? case is whether the technology at issue is actually in- In cases where liability has already been established, fringing. Technical expertise may be necessary to deter- experts may be used only in the damages phase, as mine how to assess and answer this question. In these damages experts quantify the impact of the liability. situations, experts provide something different than They frequently have economic, financial, accounting, fact witnesses for a variety of reasons. First, experts are or statistical expertise, as well as experience in the rel- allowed to rely on hearsay, generally distinguishing evant industry. It is sometimes risky to forgo using an them from fact witnesses, and allowing them to con- expert, especially if the other side has one. As trial law- sider large amounts of evidence and conduct appropri- yers know, when the other side has presented expert ate research. Second, in doing so, the experts are in the testimony, you run the risk—if not the likelihood—that specific role of laying a framework based on their expe- the trier of fact will accept that expert’s findings, sim- rience and expertise, and then assessing and interpret- ply because you have not offered an alternative. ing broad types of relevant information and facts in the While this list is not exhaustive, a final and important case (e.g., data, deposition testimony, internal docu- expert role is that of a consulting expert. Testifying ex- ments, etc.) using that framework. This provides the ul- perts, as described above, are retained to offer expert timate fact finders with a summary of the relevant infor- testimony that will be used in the litigation and consid- mation and guidance as to how to assess and interpret ered by the fact finder. Parties can also engage consult- the information in the case, as well as what the facts im- ing experts who play a different role. Consulting ex- ply given this assessment. When an expert is in this perts do not testify and their work on a case is not dis- role, testifying on the central issue in the case, the tes- coverable. Consulting experts can help an attorney timony can cover much ground and the expert can be consider different economic, financial, or technical on the stand for extended periods of time. complexities of a case, as well as assist in fact develop- Frequently experts are essential to a case in a more ment by, for instance, suggesting documents or infor- discrete role: that of building the fact basis necessary to mation to request, deposition questions to ask, and data effectively try or defend the case. This happens when a to use, or by spotting important factual issues. critical fact to the liability case is not possible to discern Parties can use consulting experts even where they with existing information or without expert interpreta- have already engaged a testifying expert on the same is- tion. For example, in a trademark infringement case, sue, and there is often value in doing so. For example, one central factual question may be whether or not a consulting experts can perform preliminary analyses to company’s trademark caused confusion among con- assess the viability of different strategic directions for a sumers. Marketing or survey experts are often retained case, without the worry of discoverability. They can to conduct surveys to collect the data necessary to ad- also assist in preparing the testifying expert for deposi- dress this question. These surveys would be developed tion and trial and provide feedback to counsel on how following the rules of survey science in order to be reli- the testifying expert can be most valuable to the case. able, but are also designed to answer the specific question at hand and provide these facts to the judge or jury. Engage Experts Early In securities fraud cases, a key fact can be whether or not allegedly withheld information was the cause of a Once the decision is made to use an expert, counsel significant change in a company’s stock price. A finan- must next consider when to engage the expert. With cial or statistical expert can analyze stock prices, eco- few exceptions, it should be done as early as possible nomic conditions, and other data and industry events, for the following reasons: and apply a formal statistical test to answer this ques- s tion, consistent with the methodologies used in their It increases the chance that your client will be able to retain the expert best suited for the case and that your chosen expert will not be prevented from repre- senting your side because of a conflict of interest. The views expressed in this article are solely those of the authors, who are responsible for s Expert advice can be critical in making the most the content, and do not necessarily represent of fact discovery, as experts can be invaluable in fram- the views of Cornerstone Research. ing discovery requests, identifying fruitful issues to in- vestigate in depositions, and even identifying the right personnel to depose. 1-7-13 COPYRIGHT ஽ 2013 BY THE BUREAU OF NATIONAL AFFAIRS, INC. EXER ISSN 1536-1896 3 s It allows counsel to use the expert (sometimes in searches, generally at no charge to attorneys. These the consulting role) to add input on often-valuable services take advantage of the national reach and early-stage questions, such as whether or not the value breadth of expert networks that the consultants have of the case is enough to make it worth litigating, poten- built up over time.

Load more