The Benefits & Ground Rules of Jointly Retained Expert Witnesses

There are times when a court case demands the input of one or more experts. However, this does not necessarily mean each party must have their own expert. Consider, for example, a divorce case where a parenting expert is needed. Alternatively, a partnership dispute may require the valuation and division of a business at issue, in which case, an expert may be needed to determine the value of a property at a given time in the past. In each of these examples, a joint expert may be able to answer the relevant question just as well as competing experts.

There are benefits to jointly retained experts, however, to reap these benefits, the parties must put in the work.

Why Consider Jointly Retaining an Expert?

There are many reasons parties may consider retaining an expert jointly, rather than each side retaining their own expert. Benefits include:

• Reducing costs, as the parties share a single expert, rather than spending money on two experts to address the same issue
• Expediting resolution, as the need to wait for each expert to respond to the other side’s findings is eliminated
• Increasing efficiency, as the expert is identified and used by the parties who have a joint timeline
• Avoiding duplication of efforts, as only one expert reviews the relevant underlying data, financial trends, etc.
• Reducing presumption of expert bias by both the fact finder and the parties
• Increasing likelihood of out of court resolution, as the expert clearly lays out their neutral findings for each party to evaluate
• Focusing the issues, thus avoiding dueling experts relying on differing theories
• Minimizing the disruptions that can occur based on interviews with the relevant parties, site visits, and addressing requests for information
• Increasing trust between the parties – while not always an issue or a goal, when the parties must continue to work together, such as divorcing parents of minor children, relying on the expertise of a joint expert can positively impact subsequent interactions

However, jointly retaining experts is a practice that should be approached with caution. The attorney client privilege which may attach to a consulting expert does not exist in a situation where a joint expert is used.

What Jointly Retaining an Expert Entails

Jointly retaining an expert isn’t as simple as two lawyers agreeing to employ a single expert. Jointly retaining an expert requires a considerable amount of thought, discussion, and planning. Without properly laying the ground rules, lawyers may end up spending a great deal of money with little or nothing to show for it. Below are a few of the considerations lawyers should give time and attention to when determining whether and how to jointly retain an expert on a relevant issue.

Obtain Client Buy-In

Without clients agreeing to a shared expert, the lawyers should not pursue this course of action. Before proceeding with a single jointly retained expert, a discussion with the client is a must. However, if a lawyer is seeking client buy in, a discussion of the advantages of a jointly retained expert can provide the client with the details necessary to allow the client to make an informed decision.

Setting the Ground Rules

When the parties decide to jointly engage an expert, planning ahead is essential. The parties should jointly draft an engagement letter that clearly details any stipulated facts. Further, the letter should outline the precise issues of contention. Finally, the letter should define the scope of the engagement and the expectations regarding reporting of the findings.

Selecting an Expert

Once the parties agree to expectations for the joint expert, they must select an expert. The approach to selecting an expert can vary, however, lawyers should consider:

• Creating a pool of agreed upon experts with an agreement that the expert used will be selected by a third party, such as the judge or arbitrator
• Having one side create a pool of experts and the other select the expert
• Having each side create a list of experts and come to a mutual agreement based on informed discussions

Regardless of the approach used, the parties must find some way to select a common expert. The process should allow for “buy in” from both sides. This is more likely to lead to both party’s satisfaction with the expert’s ultimate conclusions.

Defining the Process

The parties should proactively define the processes expected of both the expert and the parties. Issues which should be addressed include:

• How the expert will clarify issues such as the scope of the work, the procedures used to evaluate the issues, the method or methods of reporting findings, and what the expert should do if a situation not anticipated by the parties presents itself
• How the expert will communicate with both counsel, as well as procedures for avoiding ex parte communications
• Desired reporting techniques including the issuance of preliminary reports, allowing for a question period, permitting both sides to comment on the findings, and detailing other expectations of counsel for both sides
• Provisions for the participation of the litigants themselves, by and through their attorneys
• The parties should create a detailed list of how direct, cross examination, and rebuttal testimony will be addressed should the matter continue to trial or arbitration
• Expert witness compensation
• What to do in case of concerns about methodology, deviation from the agreed upon approach, dispute about the professional standards used, etc.

Relying on a Jointly Retained Expert

When the parties have done their due diligence in selecting a qualified expert, and have carefully defined the question for the expert to answer, the results of jointly retaining an expert can be extremely beneficial. However, in order for the parties to benefit, the lawyers must do the hard work up front, ensuring all parties are on the same page and all eventualities have been accounted for, even those that cannot be predicted.