The Attorney-Expert Relationship: Unraveling the Complexity

TASA ID: 1705

"I do not want legal research regarding theories, defenses, etc.  I want my liability expert to provide opinions on the facts." 

That rebuke came from an attorney who did not appreciate my suggestion that he might litigate his case under contract theory (breach of implied warranty) as well as tort theory.  To someone relatively new to litigation support, this underscored a fundamental question:  What exactly is the expert's role? 

After all, many "facts" are disputable.  Proficient experts should perform thorough investigations, during which we may assemble a wide-ranging body of relevant information-some of which may suggest alternative paths for pursuing a case.  Competent litigation consultants can help attorneys win and triers of fact decide issues fairly. 

But some attorneys do not want comprehensive case analysis from their experts.  Years after that reprimand, I still encounter ambiguity in attorney expectations. 

While experts should not presume to instruct attorneys on the law, consulting is what we do.  Are we not to be proactive in providing all advice we feel qualified to offer?  At the same time, to what extent can we involve ourselves while preserving our objectivity should a case go to trial?  It is, in the words of Gilbert and Sullivan, "A seeming paradox!" 

Setting Parameters

When attorneys call, experts must determine from a brief description if the case falls within our span of competence and is ethically feasible.  Frequently, attorneys ask us to make a preliminary assessment.   That's not readily doable-or prudent.  Attorneys may ask, "Do you think I have a cause of action, here?"  Well, perhaps; but no expert should offer an opinion at this stage, nor should we hear any confidential information. 

For me, the best starting point in determining the merit of a case is reading the petition or complaint (if it has been filed) and, if available, the answer to it.  But some attorneys seem reluctant to forward the complaint, let alone pay an expert to review it, who then might pass on the case.  

Some advance work can lower this hurdle.  Before calling potential experts, attorneys should check their credentials and references to verify that they are both competent in their fields and, above all, have a reputation for integrity. 

Then, if an attorney wants an expert's early reading as to the case's strengths and weaknesses, he or she should be willing to pay a reasonable fee for this.  If the expert's screening suggests a weak case, the attorney cuts losses; if the expert feels he or she can espouse a supportive opinion, the attorney can confidently retain the expert.  Either way, the nominal investment is justified.

There is a fine line for an expert between saying enough to get the job and offering too much.  Before I learned to request a retainer, a Michigan attorney asked my preliminary assessment of a potential case by telephone.  After receiving assurance that he would compensate me for early research and feedback, I found and transmitted to him a provision in state law that could make his case.  End of story:  he never responded to e-mails or phone calls.  No payment, but lesson learned. 

Submitting credentials is de rigueur in bidding for retention, but when I forward credentials and receive nary a word in response, I wonder.  I hesitate to suggest that any attorney might lack scruples, but apart from the lack of courtesy, might the attorney have designated me as his expert without informing me?  This happens, and it shouldn't.  

Once attorneys retain experts, they should specifically delineate the scope of services expected.  Where they do not, it's up to experts to clarify expectations before undertaking unwanted work.  The experts might describe his or her typical approach:  "I do comprehensive research and write detailed reports, including case-precedent references."  If attorneys want narrower parameters, this is their cue to define them. 

In my view, attorneys should retain experts not merely to ratify their arguments, but for all the experience-based information we can contribute.  For instance, experts can support discovery by suggesting witnesses to interview and questions to ask.  Most civil cases in my area of expertise-the hospitality industry-turn on the duty of reasonable care in the circumstances.  Especially in cases lacking forensic, medical, or scientific aspects, my expert testimony may be pivotal. 

Accordingly, I feel obliged to research every source that may help me formulate supportable opinions on each assertion in the complaint.  My input should identify what the attorney's client has done right, and also what the client might have done differently.  Ultimately, counsel is preparing for deposition and trial, where the opposition will certainly explore potential vulnerabilities in my opinions. 

As for a retainer and an engagement agreement, I have learned to require both, including a clause about who will pay for expert services, and who guarantees payment-something attorneys rarely bring up.  Because financial considerations sometimes may limit the extent of investigation that attorneys (or their clients) want from experts, the engagement contract can be adapted to each situation.   

Timing and Duration

Too frequently, attorneys seek expert consultation after substantially completing discovery-almost as an afterthought, as though they or their clients decide that a credible objective opinion might add weight to their arguments.  Invariably, this results in the urgent-need call:  "We'll overnight the discovery, but we need your feedback by next Friday latest."  It's not unusual for the expert to accept the challenge, only to hear nothing more for months. 

Some attorneys seem averse to conveying updates, and with the ease of e-mail, I think that is indefensible.  Even a simple "we won't be needing your services," or a periodic "we are proceeding with discovery," would be helpful.  Being kept in the loop keeps experts pondering, rather than wondering.  And the longer we ponder, the more we may enrich and fine-tune our opinions.  

Understood:  attorneys handle many cases simultaneously and deal with legal intricacies of which non-lawyer experts are ignorant.  Motions and rulings, interrogatories and responses, coordinating of calendars and depositions, settlement negotiations-all this takes time.  Still, in my field, where input from multi-discipline experts is minimal, most cases can be concluded within a year, two at most.   

Not all; one, involving an assault of a hotel guest, dragged on for 42 months.  Plaintiff counsel understandably waited for the criminal trial to conclude before proceeding with her civil case.  Each time I asked what was happening, meanwhile and after, the response was the same:  "Discovery." 

Unfortunately, when discovery is stretched out over years, recollection withers and witnesses disappear-especially where the expert is excluded from discovery.  During this lengthy case, I contacted the attorney several times, first to confirm that I was retained, thereafter mainly to verify that the case was still open. 

Lest this appear to be attorney harassment, the average time between my e-mails was seven months.  Twice, my contacts prompted useful phone conversations.  The attorney treated me professionally and courteously, but the only time after retention that she initiated contact was to inform me of settlement.  This deficiency of communication is more common than not, and prompts my respectful but heartfelt suggestion to busy attorneys: Communicate-please!  

In an injury case that illustrates how I wish it were always done, the litigation paralegal did an excellent job of keeping the team of experts informed as to progress, continuances,  depositions,  and the trial date.  The complex case concluded within a year with timely updates throughout, including notification of successful settlement with thanks to all experts. 

A Unique Relationship

The attorney/expert relationship is a tricky business in that experts are employed on behalf of one litigant-but are we members of the litigation "team"?  One gratifying experience was working with a local attorney on a non-compete challenge to a proposed new business.  Over several months, counsel and I separately compiled evidence.  We met periodically to sift and consolidate our documentation.  We analyzed possible opposition arguments.  To prepare me for trial, counsel simply posed questions he might ask in direct, to hear how I would respond. 

Unquestionably, being in the same city facilitate communication.  Although counsel never attempted to influence my perspective, we worked first in parallel, then in convergence, and our interaction felt very much like a collaboration.  Strictly speaking, it was not; although experts may become personally invested in cases, attorneys should work with us not as "team members," but as independent, unbiased contract consultants.

The expert/attorney relationship is as fascinating as it is complicated.  Many experts have spent a lifetime in their fields and have much to offer.  For the foreseeable future, experts will comprise an important galaxy in the litigation universe.  We-attorneys and experts alike-should welcome each new challenge as an opportunity to contribute constructively to the enduring quest for justice.  To do so is more than a job; it is a privilege. 

This article discusses issues of general interest and does not give any specific legal, medical, or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional. 

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