A Paralegal’s Guide to Working With Expert Witnesses

Paralegals have been described as “the glue that holds the law firm together.”. Tasked with all kinds of administrative duties, paralegals have the indispensable role of acting as a liaison between retaining counsel, expert witnesses, and the client. Working with an expert and helping them prepare during pretrial procedures can be a hefty task, especially when coordinating between different schedules, constantly sending and receiving correspondences and meeting court deadlines. Since sometimes paralegals themselves could use a little assistance, we’ve compiled a quick checklist to help when working with an expert witness.

Knowing What Kind of Expert to Look For

There are thousands of different kinds of experts, and often, hundreds of different kinds within just one field. By communicating effectively with the attorney, you get a sense for what kind of testimony the attorney is seeking. Then it’s up to you to know what kind of expert would be qualified to give such a testimony. Thus, when tasked with finding an expert witness, the most important first step is to know exactly what kind of expert you are looking for.

• Narrow an area of expertise
• Do a quick online search
• Familiarize yourself with the terminology (e.g. Do you need an oncologist, a hematologist, or both?)
• Do your own homework and research the specific topic area that you need an expert to testify about
• Know the proper search terms
• Reach out to other attorneys or paralegals
• Make use of referrals

Using an expert witness service, like that provided by Expert Institute can help you narrow your search and find the expert the attorney needs.

Getting the Expert’s Credentials

When an attorney has asked that you find an expert, obviously the expert has to meet the requisite qualifications. Under the Federal Rules of Evidence, the witness must also pass muster under the Daubert principles delineated in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993); see Fed. R. Ev. 703. This entails putting together a sort of “portfolio” of the expert witness which should include:

• Copies of the expert’s CV
• Credentials
• Memberships and affiliations in social or academic organizations
• Practical experience
• Litigation experience
• A numerated list of all other cases in which the expert has been deposed or has testified
• Any authorship of publications and participation in seminars
• All honors, awards, achievements

Probing the Expert’s Personality

When working with an expert witness, a paralegal’s job goes beyond just the administrative or logistical matters. Often times paralegals will be the first ones to contact an expert that an attorney has retained or is considering retaining. As a result, paralegals serve as somewhat of a screening mechanism, and trusted to make judgments about the expert that go beyond his basic qualifications, and sometimes even write a formal report! Aside from substantive testimony, an attorney will be most concerned with how an expert might relate to or connect with a jury. Important qualities that a paralegal should look for are that the expert:

• Is personable
• Has good presentation
• Voice is confident
• Delivery is audible
• Is a good teacher
• Demonstrates integrity
• Readily admits weaknesses or shortcomings in knowledge of subject
• Informs you if you need additional or different experts
• Devotes adequate time to preparing for the testimony
• Is prompt and reliable
• Attends pre-arranged meetings and is prepared
• Can handle difficult questions, a change in pace or shift in topics
• Directly answers the question asked
• Does not lose focus and go off on tangents
• Does not seem like a “hired gun”
• Has a good balance of expertise and litigation experience
• Not immediately perceived as an “expert in litigation”

It is also important to build a good rapport with the expert and make yourself as accessible as possible, since you will be in communication with him most at the outset.

Administrative Matters

As the common denominator between retaining counsel, the expert witness and the client, paralegals have the sometimes tedious task of coordinating between all of their different schedules. On top of keeping in mind judge or court prescribed deadlines, paralegals must juggle everyone’s availabilities to isolate a mutual meeting time. For example, if the attorney has retained a psychologist other than the psychologist who treated the client, then a paralegal must arrange a time for the expert witness to examine the client as well. Given the digital age in which we live, technology can be quite helpful for organizing such meetings. Some good tools include:

• Utilizing an online documents sharing space like “DropBox”
• You can upload documents and memos which are then accessible to anyone you share them with, like the expert and the attorney
• Using a digital calendar synced with your email to help keep track of important events and important deadlines
• Utilizing Expert iQ to manage expert witness engagements

Obtaining Documents

Paralegals are often responsible for obtaining relevant and necessary documents from third parties, such as courts, hospitals and other institutions. Take our example from above, where retaining counsel has chosen a medical expert other than the medical professional that treated the client. The paralegal then has to get in touch with the physician or institution where those records are held, thoroughly collect all the necessary documents, then transmit them to the expert witness for review. When obtaining documents such as these:

• Get a list of which documents the expert or attorney needs to avoid having to ask for the documents in pieces
• Make sure you have complete name or name(s) of the client
• Sometimes medical records may include middle names or maiden names
• If there are multiple types of documents or those from many different dates, make easy labels, this will save time
• Medical Chronologies can streamline a paralegal's process by offering an organized, detailed timeline of a patient's medical history.
• Medical Record Review gives a firm access to on-demand consultations with our team of physicians at any case stage.

Drafting Designations

In some instances, an attorney may ask a paralegal to draft for his review a document designating the expert to the court. This designation should include:

• All of the expert’s identifying information
• The expert’s CV
• A brief summary of the subject matter on which he plans to give testimony
• A brief summary of the facts and data used to form his opinion

Be Well-Informed

Given the close nature of the relationship between paralegals and attorneys, ethical considerations are always a prime concern. Paralegals always strive to maintain the integrity of the attorney or firm they represent and are also careful not to engage in an unauthorized practice of law. As a result it is crucial to be well-informed about the rules concerning paralegals’ activities and developments in the law. For example, an Ohio appeals court in 2006 held that an order compelling deposition of paralegal on issue of how experts’ reports were created did not violate the attorney work-product doctrine. Stanton v. Univ. Hosps. Health Sys., Inc., 843 N.E.2d 343 (Ohio 2006). As paralegals are the direct link between the attorney, expert witness and client, it is always best to err on the side of caution when concerning any correspondences between the paralegal and the expert witness.

• Always make sure the attorney approves of any written communications to the expert, as these are discoverable under the Federal Rules of Civil Procedure
• Remind your expert to CC you on all correspondences with the attorney, especially concerning meeting times and related matters to avoid the chance of oversight

Expert Fees

One of the aspects of working with an expert witness that is solely within the duties of the paralegal is handling the expert’s fees. This can be complicated as an expert’s testimony may involve tests and studies that are part of the cost. Here is a helpful tool to get a sense of how expert fees work. Once you’ve selected an expert witness:

• Be aware of their fee at the outset
• Ask for the expert’s rate form or fee
• Make sure the fee is reasonable
• Be sure to include the cost of any studies or tests

Conclusion

In the machinery of litigation, paralegals are the pieces that connect all the other components. As a bridge between expert witnesses and attorneys, paralegals work closely with both and must be diligent, organized, prompt and resourceful. Coordinating so many different matters can be hectic and keeping all the parties, including the court, constantly updated can be tedious. This checklist was designed to serve as a quick “pocket-guide” of the most important things for paralegals to remember when working with an expert witness.