Best Practices for Communicating with Your Expert Witness

Oftentimes, expert witness testimony can make or break a case. But even after the researching and vetting stage of choosing an expert is complete, choosing the most qualified expert is only half the battle. In order for attorneys to facilitate the most effective testimony from an expert, communication – from the engagement letter throughout the duration of the trial – is key. The following tips will ensure an efficient and successful attorney-expert working relationship.

Draft a Comprehensive Retainer Agreement

A thorough written retainer agreement or engagement letter is the foundation of any solid attorney-expert relationship. Like any contract, the retainer should specify all the important terms, broken down into separate and easy-to-read provisions. A comprehensive retainer notifies both parties of their contractual obligations, while also mitigating the possibility of any future surprises. First and foremost, the services to be performed by the expert should be clearly stated; i.e., whether an expert will testify at a deposition or trial or will be used solely as a consultant. The general preparation that is expected and the types of materials that will be reviewed are also important to note. If the expectations of both the expert and attorney are clearly outlined, there will be no misunderstandings.

In addition, a concise breakdown of the expert’s fees is necessary. While the fee provision should specify the method of payment (i.e., flat rate or hourly) it should also state how expenses will be compensated. Clarification of payment terms benefits both the attorney and the expert from a contractual perspective. However, it can also be helpful at trial. This is because most cross-examinations usually include a line of questioning about the compensation that the expert received; a clear breakdown of the services and fees as referenced in the retainer will ensure that the expert appears professional and fairly paid.

Discuss Prior Disqualifications and Potential Conflicts

If an expert was previously disqualified from offering an opinion to the court; then the background and context of the disqualification should be discussed as soon as possible.

If an expert’s substantive testimony was the cause of the disqualification, i.e., the science behind the opinion was too new or tenuous to relate to the issues of fact, then the particular expertise of the witness simply may not be useful to the case.

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However, other disqualifications may occur because of conflicts of interest. For example, an expert may have been formerly employed by or previously hired as an expert for the opposing party. In such a case, the opposing party has the burden of moving for disqualification. A two-part test is utilized by the court to determine whether an expert must be disqualified. First, it must have been reasonable for the opposing party (the first party who claims to have retained the expert) to conclude that a confidential relationship existed. Secondly, confidential or privileged information would have had to be disclosed to the expert. While the disqualification of expert witnesses is not common, it is certainly an avoidable problem if the attorney and expert discuss all possible conflicts of interest beforehand.

Provide the Expert with All Necessary Materials

In order for the expert to perform his services as specified in the retainer agreement, both the attorney and the expert should have a general timeline for the work that needs to be done. Depending upon the particular field of expertise, an expert’s preparation may include reviewing voluminous documents, conducting experiments, or analyzing scientific methodologies. In order for an expert to reach a fully formed opinion, all necessary file materials must be reviewed. Any materials that an expert needs to prepare should be provided as soon as practically possible. In addition, any particular rules and regulations governing the dissemination of the file should be discussed; such as whether the materials are under a protective order by the court. At the same time, because any materials that an expert relies upon are discoverable by the opposing counsel, attorneys should avoid the needless production of confidential information.

Be Mindful of Written Communications

In federal courts, expert witnesses are required to provide a written report pursuant to Rule 26 of the Federal Rules of Civil Procedure. Under Rule 26, expert witnesses must disclose to the opposing party a report previewing the expert’s proposed testimony. The report must contain “all opinions the witness will express and the basis and reasons for them.” Rule 26(a)(2)(B) also mandates the disclosure of facts or data considered by the witness, any exhibits the expert intends to use, the witness’ qualifications, a list of other cases in which the witness testified, and a statement regarding the expert’s compensation for testifying.

Rule 16 of the Federal Rules of Criminal Procedure also has a similar requirement for expert witnesses. If practicing in federal court (or a state jurisdiction that adopts such rules), this means that mostly all written communications – emails, notes, drafts – are discoverable.

Therefore, it is critical that both the expert and attorney are mindful of such communications. Experts should have a clear understanding that any documents they create might be discoverable. As such, experts should not commit anything to writing without first engaging in discussions with the attorneys. This prevents any incorrect or unsubstantiated draft opinions from being discovered and used by the opposing party to attack the expert’s credibility. It also allows an expert’s opinion to evolve as the case continues; without the expert becoming trapped into a preliminary draft. Overall, unless an idea is fully researched and substantiated, written communications should be kept to a minimum.

Set Ground Rules for Testimony

In order to make the most out of an expert’s testimony, preparation is key. An expert may have extensive experience testifying in court. However, it does not mean that the importance of direct and cross-examinations should be overlooked. Any weaknesses in the expert’s opinion should be thoroughly discussed in preparation for a zealous cross-examination by opposing counsel.

Likewise, the importance of the direct examination should not be minimized. The attorney and expert should prepare a general direct examination outline, highlighting the major points they seek to elicit. Even if an expert’s opinion is beyond reproach from a scientific aspect, the expert still needs to be competent in bringing his points across to a jury. An attorney and expert may work together to ensure that both the questions and answers during the direct examination are clear, and concise, and avoid legalese. This is so that the jury may fully benefit from the information presented.

Overall, like any working relationship, frequent communication between an attorney and an expert increases the odds of success. By collaboratively outlining, strategizing, and preparing in advance, the case becomes that much stronger.