In this summary article, we will highlight some of the important guidelines compiled by Edward J. Hyman, a lister of the Bar Associations of San Francisco’s Register of Experts Directory, in his work “The Expert Dilemma: Selecting and Working with Experts”.
Attorneys are often challenged by understanding when and how to use an expert, what to do in selecting an expert, at what point in litigation to employ the expert, and how to interact with experts in developing one’s case. Even seasoned attorneys often approach experts with trepidation. The expert guide discusses issues that are addressed in a general manner, as they most often apply, in an attempt to allow attorneys to come to comprehend better the selection and use of experts, and to view their use as an asset in theorizing and litigating cases. Cases, like people, are idiosyncratic and may deviate from these general premises somewhat, but the principles should apply to most cases, civil or criminal, most of the time.
When does an attorney need an expert?
Experts can assist in a variety of roles, aiding an attorney in defining the nature of the case, in deciding whether there actually is a case worth pursuing, and helping in discovery by defining what materials might be sought that would prove useful to the case, assisting in the preparation of the trial, and in testifying as an expert at the trial.
Perhaps the most challenging question is whether expert consultation or testimony is applicable to the case before counsel. One of the best ways for an attorney to get a basic grasp of whether an expert is needed or not is to sit back and conceptualize the case. After initially meeting the client, the attorney will need to refine answers to three questions: 1) “What’s the logic of the case I am going to make?” 2) “What do I need to do to prove that to a jury?” and 3) “How am I going to go about proving it?" If in doubt about whether an expert can help or not, it makes sense to contact an expert or even several experts, often for a short over-the-phone consultation that will usually cost the attorney nothing. An attorney should outline the rudiments of the case for the experts, articulate the lawyer’s concerns and interests, hear what the experts opine about the advisability of pursuing the case, or how to proceed, and then consider hiring an expert.
Waiting too long to contact an expert can present a variety of problems. If defending against a claim that involves alleged mental anguish, or defending a breach of contract due to alleged incompetence to have signed the document at the time of its execution, an expert is indicated. It is obvious that it would be malpractice not to secure a defense forensic psychological expert in most cases of this nature, but it would also be of concern if the attorney waited so long that the period to declare experts had elapsed, or so long from the date of the acts in question that the weight of the expert’s assessment had been substantially diminished. Generally, the closer an assessment of a plaintiff is in time to acts alleged to have had some impact on the plaintiff, the more accurate the assessment. The exceptions are when there are postponed manifestations, such as a Post-Traumatic Stress Disorder with postponed onset, or a depression that takes a while to set in, or there were other barriers to earlier assessment. In the case of a defense expert in a civil matter, the expert might need time after the date of assessment for the counsel to pursue additional records.
In cases involving new and evolving technologies, experts may be necessary for the attorney to understand the scientific or applied issues sufficiently to assess whether a case exists, and its value, if any. Even in matters involving established high technologies or sophisticated science, such as medical device cases, securing an expert may be in order before even deciding whether any case exists. In some matters, securing the appropriate distinguished expert may make the case for an attorney’s client. A further consideration may be quite practical. There are only a specific number of experts in a given field of expertise that counsel is in need of are in the proximate area. If the best expert or experts are gobbled up by opposing counsel because the opposing counsel started his search for an expert early in the case, the other side’s counsel is either going to have to accept a lesser expert, or go looking for one outside of the proximity, which would render the involvement more expensive.
Selecting an expert may be a somewhat protracted process involving multiple discussions, most often by telephone, with prospective experts. In a larger firm, the litigating attorney might delegate the initial discussion with each expert to one or more junior associates. In some firms the entire process is handled by attorneys other than the ultimate litigator or senior attorney on the case. Relegating such an important selection to a junior partner could arouse subsequent difficulties for a litigator or senior partner on a case, but also could be a genuine relief of a burden with a junior attorney properly educated in the area of expert selection. Also, to thoroughly explore the relevant issues and discern the appropriate information about the experts’ educations and backgrounds, as well as references, attorneys should anticipate multiple discussions with each expert being actively considered.
A prospective expert's work history?
An attorney is best advised to review with a prospective expert which attorneys the expert has worked over the last decade in the area of in which the lawyer seeks consultation. If the expert has worked solely for defense attorneys in civil matters, whether intrinsically an excellent expert or not, the expert may not serve the case well. Such experts are often viewed by juries as “expert whores” who have ideologically allied themselves with one side, and will not carry the same weight as an independent expert articulating exactly the same analysis, but who has a fairly even record of having worked for defense and plaintiffs’ attorneys. The same is true in criminal matters. An expert who works overwhelmingly for the prosecution or defense is viewed by triers of fact as less independent and trustworthy, and consequently is less valuable to a case than one with extensive backgrounds in both camps.
Selecting an expert
If an attorney practices in an area of law in which experts are frequently employed, and is experienced in litigation, the lawyer may already have familiarity with a good cross-section of experts in areas related to his or her specialization. Most attorneys, however, are unfamiliar with experts.
The first step in selecting an expert is deciding on what field or fields of expertise are needed. In an employment law case in which there is an allegation of a hostile work environment inducing both physical and mental reactions on the part of the employee and of consequent wrongful or constructive discharge, a forensic cardiologist may be necessary to explain the development of somatic illness arising allegedly out of the employment, a forensic psychological to elucidate the psychological condition and its etiology as related to work, and a forensic accountant to explain the wage loss.
An error in initially selecting the field of expertise at an early stage in litigation is not fatal, since contacting an expert in an allied area may lead to an appropriate referral. For instance, in consulting an expert in Internal Medicine about a particular aspect of a case, the attorney may be informed by the internist contacted that the case requires not a forensic internist, but a forensic gastroenterologist or a forensic liver specialist. As long as the attorney starts the search for an expert at the beginning of the case, such errors are readily corrected, and the first expert may even indicate several referrals to more appropriate experts. A good expert will not accept a case that exceeds his or her area of expertise. Selecting a particular field of expertise may be more complicated than it initially appears, and guidance from experts in other areas may be quite helpful. Leaving the time to elicit such guidance is essential.
If an attorney is familiar with a partner or colleague who has had a similar case and successfully used experts, contact the colleague for a referral. If the attorney has determined the area of expertise required, but hasn’t the foggiest notion of whom to contact, turning to a fairly exhaustive and authoritative source like the SF Bar Association’s Directory of Experts can provide clear guidance. Reviewing the listings in the field the attorney seeks can provide a feel for various experts’ specific areas of specialization, and their experience in forensics.
The attorney and the expert should discuss the legal issues, the expert should become familiar enough with them so her or she can define properly how to proceed on a sound legal, scientific and professional basis, and perform the assessment or activities associated with the consultation.
Contacting an expert
After outlining the confidentiality of the communication, the first question an attorney would pose to a forensic expert, since he or she most likely has a lengthy history of involvement in litigation, is to establish that the expert has no conflicts, is not currently working for the opposing counsel, has never treated the plaintiff, etc. A quick review of names over a few minutes most often suffices to alleviate such necessary considerations. Next, one wants generally to describe to the expert the case in question, outline ones ideas about the role of the expert, and hear about the expert’s experience in similar cases. If the expert believes herself or himself not to be suited, inquire who is. This discussion should lead the attorney to confirm that the correct type of expert is being sought for the case, as well as the identity of an expert well-suited to the particular case.
Then the attorney wants to outline the general course of the litigation and assure that the expert will be available in the time period required. The attorney should solicit from the expert the names of other lawyers with whom the expert has worked in parallel cases and hear what colleagues have to say about their interaction with the expert. It is appropriate, having generally outlined the case, for an attorney to solicit a preliminary opinion of the expert about the case based on the materials they have reviewed and the expert’s experience with such cases.
Finally, an attorney will want to determine the expert’s fees. A review of multiple experts along these same lines will produce valuable information. Do not choose an expert based on low hourly figures. Most experts who are good ultimately charge in the same ballpark. Some may read more slowly, but prepare more rapidly for trial. A cheap expert may not be a good one. Also, the expert with a high per hour fee who reads quickly may cost you less than one with a lower hourly fee who reads slowly. Also, experts who communicate well with juries and are liked by the triers of fact are worth their weight in gold. Selection of an expert based largely on fees is often a deceptive practice, leading one to the least costly but not necessarily most qualified expert. Bad experts can cost direly.
Never engage an expert by establishing a contingent interest for the expert in the case. Contingent relationships to a case violate most local, state and national ethical codes of the scientific and professions organizations engaged in forensic activities. Further, allocating to an expert a contingent relationship, or even the appearance of a contingent relationship, can create the impression of expert bias in the eye of the trier of fact, and render the expert worthless, or even harmful to the case.
Further, there are other ways to contain costs besides choosing a deficient expert. Every expert can approach a case in several ways. Seasoned experts often outline for their clients different approaches. For instance, they may outline the assessment process that provides the most conclusive relevant data, i.e. the most expensive, one that provides a minimally acceptable approach, the least costly, and one that combines elements of the other two, producing a mid-range cost analysis. Such exploration of how the expert will proceed and what alternative methods can be employed are often illustrative of the expert’s ability to grasp the key issues, communicate the germane issues effectively, even if cost is not a factor.
Interviewing the expert
To control costs, experts are initially best contacted by telephone. In the initial call, the attorney should seek information about 1) whether the expert has any potential conflicts; 2) the expert’s availability at the time of the litigation; 3) an adequate synopsis of the expert’s background to establish the candidate’s expertise in the area the case requires; 3) experience with litigation support; and 4) a list of attorneys who can provide references in the specific areas.
If the expert’s responses in the areas delineated above strike the attorney as strong, the lawyer would next ask the expert to 1) email or fax a CV, and would then 2) contact some or all of the attorneys cited by the expert as references who had used the expert previously in a similar case.. Normally an attorney would query multiple prospective experts in this manner, and consequently would be able to discern commonalities and differences among them, educating the attorney not only about the differences in their education, experience, approaches and skills, but also the range of fees they charge.
Do not be surprised if much more experienced experts charge much more. Often they are just factoring into their fees the work they routinely do staying abreast of recent techniques, innovations, instruments, research and key findings in their own and related fields with which less experienced experts may be unfamiliar or only minimally familiar. Forensic experts in a field read more extensively in the journals and scientific publications than clinicians or non-forensic practitioners. An experienced forensic structural engineer would be expected to be extensively more conversant with the scientific literature in structures than the average practicing professional engineer. Such scientific familiarity most often enhances the ease with which these seasoned experts can communicate complex notions in ways juries and jurists can understand.
After the initial interviews and subsequent review of the experts’ CVs and contact with their references, the attorney will have refined the initial list of experts to a shorter list of serious candidates. The attorney may then choose to have further discussions over the phone with the prospective experts, or to meet them in person to interview them. In either situation, some attorneys might challenge the prospective expert on one or more assertions to judge the expert’s responses under stress. However, it is most often much more fruitful to solicit from attorneys whose names have been provided as references how the expert performed in deposition, on direct and on cross.
Working with an expert
If one has secured an expert early in the case, the relationship may endure over several years. This is not at all infrequent in both civil and criminal matters. One should develop questions for an expert on an on- going basis. Attorneys should anticipate that a skilled and experienced expert will define the forensic issues in scientific or professional terms, and then assist the attorney in a collaborative effort to translate those issues into admissible questioning and arguments in lay language, not medical-legal terms. The two are not equivalent.
Whether in direct or cross, the answers or questions themselves may also, of necessity, turn to the validity and reliability of the techniques employed, even in a Kelly-Frye jurisdiction. Experts not only have to describe their objectives, methods and findings clearly and interestingly, but also have to be able to defend their results under intense attack. This requires an expert who can remain calm in the face of intense controversy, not allowing opposing counsel to evoke from the expert inappropriate emotions that would diminish the credulity or value of one’s expertise in the eyes of the trier of fact.
If the expert chosen cannot keep the attorney abreast of her or his progress in a manner that is clear and comprehensible, the lawyer needs another expert. If what the expert proposes to do or is doing, does not make sense to the attorney, and the lawyer cannot receive a explanation that is satisfying, again the attorney should seek other consultation. The expert also needs to be someone whom the attorney personally can work with. The attorney has particularities of his or her own personality. The attorney and the expert need to work closely as collaborating colleagues, so the two of must be able to interact minimally well to sustain the relationship over the necessary period, often years.
However, the attorney should never allocate to the expert work a lawyer must do. Even if the expert is experienced, provide the expert with the relevant statutes and decisions that pertain to the case. An attorney should not rely even on an expert, even one with a law degree, to distill the legal issues and points of authority in the case as they relate to the expert. The attorney and the expert should discuss the legal issues, the expert should become familiar enough with them so her or she can define properly how to proceed on a sound legal, scientific and professional basis, and perform the assessment or activities associated with the consultation.
The expert's role in attorney's preparation
The role of the expert often extends to aiding the attorney in preparing legal documents or for legal proceedings. In civil matters, attorneys might be well advised to seek the assistance of their expert in preparing for the deposition of an opposing expert, even if the attorney has taken many depositions. Since each case poses particular problems for an expert, knowing the expert’s view of the professional issues in the case in the expert’s field of expertise should enhance the lawyer’s ability to engage in a useful deposition. In the best case scenario, the attorney might establish a record of significant deficits in the opposing expert’s training, experience, or in his or her actual assessment techniques that might prove fatal to the expert opinion in the case. In less dramatic instances, the attorney can document a “fly by” assessment technique that is a substandard deviation from the prevailing forensic standard of care, or mistakes that the opposing expert has made. In other instances, you may be able to document that the opposing expert has ignored important data, or did not have access to crucial material.
Some consultations are more common to family law. In a family law case, for instance, an expert forensic psychologist who is a certified and experienced custody evaluator can sometimes offer a very different perspective on the same data that has led a custody evaluator in a very different direction. At other times, the second expert provides a different set of data, because of investigating matters the other custody evaluator did not. It is often necessary to hire a custody evaluator as an expert to have a deficient custody evaluation set aside, and to have the court appoint another custody evaluator.
In a criminal matter, attorneys often benefit in case planning from consultation with an expert. For instance, in a homicide in which the plaintiff had pled not guilty by insanity, the attorney was considering putting him on the stand. The forensic psychologist on the case pointed out that the individual made a very good first impression, and that his pathology took quite a while to expose itself, despite its severity, and that his testimony would further confound rather than assisting his defense. The attorney reversed her decision to put the defendant on the stand, and they prevailed in the jury decision. The attorney attributed to the expert’s insight into what the defendant’s impact would otherwise have been on the jury.
Attorneys often benefit greatly from collaborating with their expert in preparing court documents related to their assessments, evaluations, depositions or other factors specifically related to the expert. Often experts will find the drafts an attorney crafts to be acceptable generally, but specifically deficient in describing the expert’s actual practices, or other technical factors that may pertain to the case.
Interested in learning more about expert insurance, choosing a consultant over expert, or avoiding expert deficiencies? Click here to read the full version of the expert guide.
Edward J. Hyman, PhD is a R. Nevitt Sanford Professor of Psychiatry of Psychology and Law, Emeritus, Center for Social Research and Director of California Institute of Forensic Sciences.
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