Avoiding Costly Errors When Hiring an Expert: An Expert's Perspective
TASA ID: 2089
The vast majority of attorneys in cases where I have been retained have been exceedingly bright, talented, and knowledgeable, as well as quick studies of what can sometimes be very complex transactions. I have nonetheless been very surprised to discover some common mistakes these capable professionals make in selecting and utilizing an expert witness or consultant. Although my expert testifying and consulting experience involves banking & finance litigation, debt resolution, and loss mitigation, the mistakes and corresponding recommendations I discuss below are relevant to any attorney who hires and works with experts.
Not Selecting The Right Expert
My focus, in this area, is on the background credentials of the expert. I assume that any expert retained by a law firm will make a good appearance and speak well enough. In a world where juries expect detailed examples and engaging visuals, an expert's testimony is critical to the case. Specialists, not generalists, often win the day. The true mark of an expert who will help make or break your case is the depth and diversity of the expert's background within the industry involved in the litigation. I specialize in financial institution matters, yet I have seen opposing counsel try to qualify CPA's or mortgage brokers as their experts. While these people may be excellent at what they do, they have no understanding of what goes on inside a bank, factor or finance company. Even a line employee of the institution (particularly a large institution) usually does not have the well-rounded experience of the overall enterprise or the administrative background to see and comprehend the big picture. An expert who does not have diverse administrative background may know how things are done because of habit, e.g. "someone told me to do it that way" or "we've always done it that way." Witnesses from smaller institutions may combine the lack of experience with a historical failure to ask or learn. As a result, these people will not be convincing to a judge and jury, especially after a rigorous cross-examination. A convincing consultant or expert must be able to explain the logic or rationale of what was or was not done in easily understandable language.
Also, I understand that attorneys must ask certain questions of a potential expert for the obvious reasons, but the interpretation of the answers may be flawed. My favorite is "How many times have you testified at trial?" While I have handled my fair share of cases, very few have gone to trial and most have settled on favorable terms, particularly after submitting a report. My point here is that choosing the right expert, not necessarily the one who has gone to court the most, can really help your case. Perhaps better questions to ask are "How many expert reports have you written?" and "How many of those cases resulted in a favorable settlement?" No expert can turn a case without merit into a winner, but the right expert can highlight the strong parts of your case with enough credibility to induce a favorable settlement.
Waiting Too Long To Hire An Expert
There are three ways that waiting too long to hire an expert hurts your cause. Probably the most unpleasant of these reminds me of the promo line for a radio legal talk show --- "This is where you call me on the telephone and I tell you that you have absolutely no case!"* Getting an early read on a case from a consultant/expert can help you avoid a lot of aggravation and save money. (*Bill Handel on the Law," KFI Radio, Los Angeles)
Perhaps more important is the second reason. Waiting too long to hire the proper expert prevents you from comprehensively framing the right issues. A good expert has the industry experience to immediately spot where standards and practices have been violated and can explain why these departures are important for your case. Experts have also seen and participated in numerous similar cases so they can translate between breaches and cause of action. You may lose this very valuable assistance if an expert is not retained before a complaint is filed.
Finally, one of my "favorites" is being retained after the discovery period is closed. Valuable evidence can be lost if a competent expert is not consulted before discovery ends. A good expert can tell you exactly where to look in the files to support your position. What may not seem important or relevant, or is simply not considered, can be very revealing for your case. Conversely, there are many document requests that may be informative, but as a practical matter, will never be obtained. As an example in my individual area, regulatory examinations, though very revealing, will rarely be released.
Not Taking Your Expert To Depositions and Trial
To someone who knows the industry and its related hedge words, not taking your expert to depositions (or trial) can be really damaging. Very often, the subject of the examination will say something that, to the uninitiated, may sound logical and reasonable, but the answer may have been carefully phrased and/or contain industry jargon that narrows or limits the response. An expert who is intimately familiar with the language of the trade can suggest questions to expose limiting language. Having your expert appear at trial only for his or her own testimony deprives your expert of the opportunity to hear and dissect opposing testimony and perhaps suggest questions to be put to the other side, and that deprives you of valuable analysis and feedback from your expert The result of this ability to probe carefully- hedged answers can completely change the impressions left by the opposing side and, if a trial follows, the impressions left on a judge and jury.
Limiting The Information Given To Your Expert
Occasionally, an attorney will not give his expert all the information he has. Sometimes the attorney will discuss this information with his or her expert, and both agree that it really would not add any value for the expert to review certain material. If that is the case, then "no harm...no foul." If that isn't the case, you could be headed for disaster. If a document contains information unfavorable to your position and you don't show it to your expert, it's a safe bet that the other side will. Picture the scene where opposing counsel asks your expert, "Mr. ..........., now that you've read this document, does that change your opinion?" The major reason expert witness testimony is invaluable can be summed up in one word: "credibility." If the expert loses credibility with a judge and/or jury, the result can be worse than if you had no expert at all. I was taught, early in my career never to defend an untenable position.
Not Allowing Sufficient Time
Give the expert enough advance notice that you will need his or her services. A well-reasoned, logical opinion needs to take into account a multitude of factors, some of which may not immediately come to mind. In many of the cases I have worked on, I was surprised that simply looking back on the facts caused me to remember additional facets which added to or solidified my opinion. In one recent case, the attorney I was working with was surprised to learn about certain industry customs that I had previously considered so mundane as to not be worthy of mentioning. Had I not been brought into the case early enough, I wouldn't have been able to share this important background information with him. Make sure to allow for plenty of advance warning and frequent communication.
If a report is required, I always like to read it over at least a few times to make sure the thoughts conveyed present all the pertinent facts in an "easy- to- read- and- understand" fashion. My past experience has been that a well- reasoned and well-organized opinion or report promotes settlement. A hurried expert analysis is usually flawed, allowing an opposing attorney to have a field day questioning a "rush job."
"Saving Money" by Doing What an Expert Could Do
Conventional wisdom says that when you try to do something on the cheap, it usually results in being more expensive over the long run. I am certainly not referring to expert fees but rather to the cost of time wasted and perhaps cases lost by not fully utilizing the right expert or by having someone on your staff attempt what the expert could do more quickly, and therefore, more economically.
The discovery process ordinarily leads to mountains of paperwork, most of which will yield no valuable evidence. The right expert who knows the inner workings of the industry is likely to slice through the useless information and get right to the heart of the matter. This, immediately, saves time and money.
Upon getting to the critical information quickly, the expert will be able to know exactly where to look for additional facts and materials to confirm or contradict the impressions garnered by a first strike at voluminous discovery. Further, a good expert's industry knowledge will quickly turn to other areas of discovery for confirming a particular set of facts that would not commonly be considered, again, saving attorneys and their clients time and money.
Not Choosing Someone Experienced AND Current
Like fashions, some types of litigation re-appear after having not received much attention for many years and are thought to be "new." Much of the litigation I see rises and falls as it mirrors the economy and the fortunes of financial institutions, so what was old is now new. This financial crisis has spawned some new issues. Whether your issue is new or old, most people would prefer an expert who, among all the things mentioned above, is experienced. If your issue is one of those brought out by the current crisis, your expert must stay continuously educated and up-to-date. This dictates against hiring a "casual" or "hobbyist" expert. Hiring the right expert must include consideration of not only the expert's industry experience but also the amount of time spent considering new issues affecting the industry.
Conclusion
The attorney-expert team is critical to the successful litigation of cases of all sizes. Experts must be objective while vigorously searching for facts and the truth. Winning the case, and saving time and money, can all hinge on your careful selection, skillful utilization, and adept preparation of the right expert.
This article discusses issues of general interest and does not give any specific legal 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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