Best Practices When Working With Expert Witnesses

Litigators often need to engage the services of expert witnesses while prosecuting or defending certain types of cases.  Sometimes, experts are needed to inform a fact finder about complicated matters related to a case, and in other circumstances, an expert is needed for a party to prove its basic case. Dealing with expert witnesses is not something that lawyers learn on the bar exam, or as an associate attorney, but working with experts can mean the difference between victory or failure in a given case. Lawyers can keep certain things in mind to make the best use of experts during litigation.

Fixed Fees

Clients often complain to lawyers about counsel fees and how unpredictable invoices can be for a given legal matter.  However, experts can be even more unpredictable with their fees, and they are not subject to many of the same record-keeping requirements as lawyers. Moreover, experts often have more leverage when it comes to having their fees paid since experts (unlike lawyers) can usually terminate their involvement with a case at any given time.

I have dealt with experts who charged more to read a deposition transcript than I spent taking the very same deposition and exhibit other billing practices that were hard to justify. Since experts can bill clients for an inordinate amount of money, negotiating a fixed fee with experts, whenever possible, usually makes sense. Fixed fees are commonplace when it comes to experts who routinely give certain types of reports, although hourly rates may apply to testimony.  However, I have found that many great experts will agree to a fixed-fee for all kinds of experts. Fixed fees can keep the client happy and can also ensure that experts do not go overboard and bill in an unpredictable fashion.

Written Conversations

Lawyers should keep in mind: minimize the amount of written conversations and document exchanges you have with experts. Although communications with experts and counsel may be privileged, this might not apply if third parties are also present in communications. In addition, in some jurisdictions, the materials provided to experts are discoverable by other parties to the litigation. In still other situations, drafts of expert reports might be discoverable.

Lawyers and experts should try to minimize the amount of content that is discoverable by other parties to litigation.  Even if such materials are innocuous, they might be twisted to create a narrative that does not favor a client. Having phone calls and zoom meetings rather than written communication is often the best way to minimize the generation of discoverable material.

Listen To Experts

In many situations, experts are not only useful for the testimony or reports they provide, but about their suggestion for strategies to pursue. Experts often have a better understanding of complicated subject matters than lawyers themselves, and experts can be useful when it comes to advancing arguments in litigation. For instance, I once hired an expert to produce a report that supported a theory of the case I created. However, the expert had theories of her own that added to the claims I wanted to make in the litigation. This gave us a much better chance at victory in the litigation, and I credited the expert with theories of liability that I did not originally consider when evaluating the case.

All told, experts can be extremely useful when it comes to prosecuting or defending claims in litigation. With a few suggestions in mind, lawyers can ensure they best use the services of experts without drawbacks that might sometimes exist when engaging those experts in litigation.

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

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