Typically, testifying experts are not designated for months, if not years, into litigation. As a result, they can be an afterthought for a client involved in a new litigation matter. However, thinking through expert needs early can pay dividends. Here are five things you should keep in mind when assessing potential expert needs.
1) Timing is Important
Especially in the oil & gas/energy industries, certain experts are in high demand. Top quality experts often have case commitments spanning years into the future. If you need an expert, chances are the opposing party has a similar need. This can often lead to a “race” to retain the premiere expert in a certain field. Locating and retaining the right expert early (even pre-filing in certain instances) can have dramatic consequences on the course of litigation. Thus, if you or your company know that litigation will likely require expert testimony, an early conversation with litigation counsel about experts is important. Outside counsel can begin working quickly to identify and retain the right expert.
2) Don’t Discount the Value of a Consulting Expert
When clients hear “expert,” they often think of a testifying expert. However, consulting experts (those who do not testify) can be very important. In cases with complex data, obscure subject matter, or large investigative needs, consulting experts can be extremely valuable. For example, if you or your company’s case will require frequent analysis of complex data, a consulting expert can help lessen the burden on your operational staff's time. Instead of litigation counsel burdening your in- house team with constantly pulling and analyzing data, litigation counsel can work with your consulting expert. This frees up your team to focus on projects and tasks that help your business. In other instances, a consulting expert can help you or your company gain an informational advantage earlier in a case. Additionally, matters reviewed by consulting experts are often shielded from discovery. This can allow a consulting expert to review a larger scope of information with less of a concern about creating discoverable material that may harm your case.
3) Defining an Expert’s Scope Can Help Save Time and Money
Experts can be expensive. Good experts want to make sure they do not miss anything in their analysis. Thus, defining an expert’s scope and providing them with the right information not only saves time, but also money. Spending front-end time gathering and organizing information that an expert will need is typically well worth it. An expert that is handed an assortment of unorganized information will be required to spend time (and your money) organizing the information before they get to substantive analysis.
4) Seemingly Simple Things Can Require Expert Testimony
Generally speaking, most future projections or models of past losses require expert testimony. Thus, although companies routinely project future profits, past losses, or the value of a particular client or customer, expert testimony may still be necessary. By way of example, a well credentialed financial analyst or CFO may be surprised to learn they need an expert for calculations they routinely make as a part of their day-to-day business. However, matters like lost profits damage models are typically the subject of court scrutiny. Business standards and legal standards can vary, sometimes substantially. A company’s internal projection process may not be sufficient to withstand legal scrutiny. Accordingly, it’s important to talk through even the simple things with litigation counsel before it’s too late.
5) Winning the "Battle of the Experts" Can Be Important, But It's Not Everything
Experts are frequently hyper-focused on a particular issue. That issue is often of critical importance to the case. However, an expert’s testimony rarely touches every issue in a case. For instance, an expert may be focused on damages because liability issues are lightly contested. However, clients and trial teams cannot let the time and work required for good expert testimony distract them from meeting other legal burdens (no matter how insignificant they seem). For example, I have seen cases where an expert’s focus on his or her important issue creeps into the case writ large. This can lead to negative effects like inadvertently taking inconsistent positions. Thus, regardless of the strength of an expert, it is important to have the right litigation team in place to keep their eyes on the bigger picture. Experts often go “into the weeds” on particular issues. But having the right litigation counsel helps make sure the ultimate decision maker (whether a judge or jury) is presented with a consistent and well-rounded picture of the case.