(Regan Butcher and I published this piece yesterday here)
Through our experience as experts, we have found a key factor in litigation case preparation is time. Engaging your expert early in a case, even before the ink on the complaint is dry, allows for thorough preparation and discovery and even better case outcomes. In this short piece we outline our seven reasons to engage an expert early in a litigation proceeding and example outcomes when early engagement did and did not occur.
- Early engagement = calm. While the word “calm” cannot often be used in litigation strategy and preparation, more time to prepare can result in less hectic preparation. By engaging an expert early, this will allow the expert the gift of time to properly prepare their strategy and may help avoid some of the down-to-the-wire hours needed for trial preparation. Some, but not all.
- Early engagement allows time for thoroughness. Better case outcomes will result if your expert has time to thoroughly do her job, research potential pitfalls, understand case alternatives, and potentially identify new areas that could strengthen the case. Once, in a housing discrimination case, early engagement in the process allowed for examining multiple sources of housing data, informing different versions of her expert report. In this case, the attorney and the expert had plenty of time to go back and forth, matching the data to the case strategy. Without this time together, case strategy would have relied on the expert’s first data pull, potentially missing other better data sources.
- Your expert may be able to assist with case precedence, if time prevails. Beyond their expert duties, experts may have personal knowledge of other cases that can be studied for their expert strategy and common use of expert consultants and witnesses. For example, a statistician expert in a discrimination case will likely know how other statistician experts have behaved in other discrimination cases. While you know litigation strategy, your expert consultant will know her subject matter, including knowledge of case precedence and expert behavior in similar cases.
- Your expert can assist in preparing you to take key witness depositions. If the subject matter involves technical issues such as accounting, auditing, fraud, or statistical matters, your expert can help identify the “top ten” key admissions from deponents in a simple concise manner. Those admissions can be critical in preparing for trial or even settlement discussions. There have been matters where the expert had been engaged after key witness depositions had already been taken and several key admissions needed to support expert testimony were not obtained. This required costly follow-up or resulted in expert opinions that ended up on the cutting floor when it could have been prevented.
- In some plaintiff matters, consulting experts are engaged while the complaint is still in draft mode. Your expert can add value by identifying areas to strengthen the complaint. For example, early engagement in a fraud case led to the identification of additional areas of the financial statements that were affected by the fraud. For defense matters, your expert can help review the complaint and break-down technical jargon related to her area of expertise, so that the issues are easy to understand. The expert can assist you in developing points in response to the asserted claims.
- Your expert consultant can be a tremendous help during discovery. They can assist in requests (or responses) for production, requests (or responses) for admissions, and assist with interrogatories. Your expert can help decrease costs by making document requests targeted and simplified. Your expert can help with e-discovery, by working with other vendors to develop OCR key word searches to narrow down document search results. And, your expert may have broader direct experience with different vendors than you do.
- Your expert can assist in preparing you to take the opposing expert witness deposition. This includes identifying weaknesses in the opposing expert’s arguments and obtaining key admissions. Given that your own expert is knowledgeable in the subject matter, they can prepare you for potential answers and follow-up questions. Engaged experts occasionally attend the opposing expert deposition to help with follow-up questions and research as the deposition is in progress.
As experienced expert consultants, we have found that being engaged in a case earlier rather than later results in a smoother ramp-up with the expert, particularly if your expert is a new working relationship. With time, experts can greatly benefit case strategy, from the complaint to subject matter expertise to trial preparation. Occasionally, we have had to turn down engagements, because there simply wasn’t enough time to adequately deal with the issues. In all, we’ve been engaged throughout various phases of cases, but have found that it was never too early to be a part of the case.