Whether you are an experienced expert witness or considering taking on your first litigation assignment, every expert witness wants to ensure their engagement runs as smoothly possible. Because GLG has years of experience helping connect litigators with the right experts, we’ve heard many stories from expert witnesses about what makes for a successful engagement, as well as the most likely scenarios that can cause an engagement to go awry.
We recently spoke with two tenured expert witnesses, GLG Network Members Jim McGovern and Tim Wahlers, about best practices for avoiding problematic situations and positioning yourself for a seamless expert witness engagement.
Ask Targeted Questions Up Front
As simple as it sounds, one of the best ways to avoid potential pitfalls in an expert witness engagement is to thoroughly vet the opportunity from the outset. As our Network Member Jim McGovern notes, “[you] don’t want to commit to something that doesn’t allow you to handle the case in a proper way.”
Use your early conversations with the attorneys to answer these questions:
- Does the case/anticipated work seem well-suited to your background and expertise?
- Do you agree with the client’s core position?
- Do you have any actual or perceived conflicts with any of the parties involved in the case?
- Do you have the time to dedicate to the potential opportunity?
It’s also important to understand the law firm’s relationship with their client. Specifically, try to get a sense for their alignment on anticipated work for you, if there is a work history between the law firm and the client, and how trusting the law firm seems to be with their clients.
Clarifying these points from the outset can help you avoid issues or miscommunication on the back end. With “three players [yourself, the law firm, and their client],” veteran expert witness Tim Wahlers notes, “it’s important to understand the roles and the relationship.”
You can find some more suggestions for questions to ask in our recent article What Should a Potential Expert Witness Ask in a Screening Call?
Maintain Strong Lines of Communication Throughout the Engagement
While it’s important to align on expectations at the outset of the engagement, cases often change in strategy and/or scope, meaning that your role as an expert witness may evolve over the course of your engagement with the client. As a result, it’s imperative that you and the attorneys establish regular meetings or calls to ensure all parties remain on the same page.
Becoming a Successful Expert Witness
This GLG Applied webcast was recorded on November 11, 2021
On a practical level, strong lines of communication should ensure that you keep your attorney client apprised of any changes/developments related to your expert work. That means informing your client as soon as you have a sense that a task will take more time than originally forecast and keeping your clients apprised of any hesitations regarding your ability to fully support their underlying argument.
Determining the Appropriate Method of Communication
Equally essential to frequently communicating with your attorney client is ensuring that you know how best to communicate throughout the engagement, particularly with regard to client preferences surrounding discoverability.
What is discoverability and why does it matter for expert communication? Discoverable information is that which must be exchanged between parties during the litigation process. Specifically, this refers to information concerning witnesses and evidence that is presented during trial.
Crowell & Moring’s resources on discoverable information outline a few overarching areas of discoverable counsel-expert communications, including those that:
- Relate to compensation for the expert’s study or testimony;
- Identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or
- Identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.
It’s important for experts to be mindful of any potentially discoverable information that they put in writing when working with a client. Drawing from his own extensive expert witness experience, Jim McGovern cites a few recommendations regarding discoverability:
- Impact of Venue: The court in which your case is heard can change what qualifies as discoverable information. Because rules vary between federal and state courts (and between different state courts), McGovern notes that it’s important to understand what venue you are in when thinking about discoverability.
- Descriptions of Tasks: If you’re ever in doubt of how much detail to provide when it comes to listing descriptions for time spent on expert work on timesheets for billing and invoicing, McGovern recommends “us[ing] pretty generic descriptions of the work [you’ve] done,” such as “phone call” or “reviewing documents.”
- “Controversial” Questions: When it comes to controversial questions or issues, McGovern’s advice is to always call an attorney before putting anything in writing. What makes a question “controversial”? Generally, anything that calls the client’s argument into question or casts doubt on their/your credibility is best reserved for a phone call instead of an email.
What’s the best way to avoid running into problems with discoverable information? Ensure you’re aware of a specific client’s preferences from the outset. When it comes to discoverability, McGovern notes that he always aims to “establish the expectations and ground rules up front.”
What if I do everything right and something still goes wrong with my expert witness process?
There is always the possibility that, even if you have done everything possible to prepare for a smooth expert witness process, things will run off course — you may be faced with a scope of work that is far greater than anticipated or unexpected billing disputes may arise.
In these scenarios, communication with your clients is key. Let them know from the outset how changes in scope of work might affect any forecasted hours estimates or budgets and be realistic about what you can take on if the scope of work does change. If billing disputes arise, be open and honest with your clients and discuss how best to get ahead of similar situations in the future.
Ultimately, the process of serving as an expert witness can come with its challenges. But, with strong communication and forethought, you can avoid many of them and set yourself up for a smooth expert witness engagement.
When working with GLG on an expert witness engagement, we have an Engagement Management Team that oversees much of the relationship between the expert and the attorney. While experts have direct relationships with counsel, they can also work with our tenured Engagement Managers to assist them with any questions.