Bates News,Bates Research - 11-29-18
Best Practices When Working with Expert Witnesses
Your relationship with your consulting or testifying expert is a critical component to your case. Mastering best practices when working with an expert will better support your case.
We recently polled several of Bates’ financial industry experts, many of whom are former general counsels, branch managers and regulators, to summarize best practices when working with consulting and testifying experts. Here's what they had to say.
Best Practice #1: Engage Your Expert Early
Engage your expert sooner rather than later in order to gain their best insights and to inform your strategy. Overwhelmingly, our experts say their matters fare better specifically when they can bring their expertise to bear in: (a) your early case evaluation process; (b) before mediating; (c) before determining what documents and materials your client should have; and (d) before determining what documents and other materials you should demand during discovery. One Bates expert notes: “As a witness, it is important to have access to all pleadings and relative documents early or as they become available, particularly if the client wants a full analysis and assistance in developing the strategy for potentially trying or mediating a case.” Finally, keep in mind that experts’ schedules book up quickly, often months in advance. Make sure you reach out to an expert early to determine their availability before agreeing to hearing or trial dates.
Best Practice #2: Be Alert to Your Expert’s Warnings and Strategic Counsel
An expert is an expert because of their knowledge and experience. To hire an expert and ignore or fail to incorporate their counsel could possibly lead to a critical mistake or oversight of a material issue. As one trial expert stated: “Many attorneys, by the time I am retained, have already decided how to defend their case and are convinced of the strengths and weaknesses. These attorneys are simply ‘checking a box,’ because procedure may require them to have an expert.” This often leads clients to “ignore warnings that invariably surface again later, much to everyone’s detriment.”
This expert further pointed out that: “The best counsel to work with are those that don’t know what they don’t know. These are attorneys who recognize the complexities and nuances of, for example, the retail securities industry, and are willing to learn everything they can to improve their chances for a reasonable settlement or a minimal award. These attorneys value an expert’s input, expertise, advice and opinions. Importantly, they are willing to listen when offered candid criticisms of their cases. This can be truly valuable to counsel.”
Best Practice #3: Do Your Homework
Attorneys and their clients need to do their homework to ensure that there are no contrary sources that may compromise their cases. As one Bates expert stated: “Clients need to have thorough discussions with the experts so they don’t have any memorialized opinions, such as white papers, articles, or accessible transcripts that conflict with the issues of their matter. A client also needs to clearly understand the expert’s background and have thorough discussions about any red herrings in their past that opposing counsel could use to reduce the effectiveness of their role and testimony.”
Best Practice #4: Be Penny Wise, but not Pound Foolish
Costs are always a concern for an in-house counsel client and outside counsel. As one expert commented: “Clients and counsel too often, in an effort to limit costs, wait until after mediating before retaining an expert or until the deadline for exchanging witness lists and documents is upon them. In my experience, that is a mistake both from a preparation and cost point of view, particularly in cases where you are seeking to settle before hearing or trial. The extra investment incurred by retaining an expert early is typically minimal and more than made up by insights gained during Early Case Evaluation, before mediating and during discovery.”
Best Practice #5: Expert Attendance at the Full Hearing is Beneficial to Your Case
Experts are part of a trial team. To limit their access during the process is to deny their ability to spot problem issues or provide insight. As one substantive expert shared: “A strategy that is becoming more prevalent is the idea that, as an expert, I can be equally effective when attending only one hearing session in order to testify, as opposed to all of the preceding days of the hearing. It is critically important for me to hear and see the testimony of other witnesses, the tactics of opposing counsel, and the reactions and questions of the panel. While I recognize that costs are an issue, I firmly believe that hearing attendance costs for the expert are among the best dollars that can be spent by the client.”
For over 30 years, Bates Group’s quantitative and substantive experts and consultants have been engaged on thousands of financial services cases. Bates Group experts render analysis and support clients on cases concerning industry and sales practices, complex products, and damages assessments, to name a few.