Selecting "The Right" Testifying Expert and
Best Practices for Getting the Most Out of
Your Expert During the Pretrial Phase of the
Litigation
ABA Section of Litigation — April 10, 2014
Brian R. Booker, Esq.
Quarles & Brady LLP
Phoenix
Sonya Kwon
Navigant Consulting
Los Angeles
Edward M. McDonough
Alvarez & Marsal
Phoenix
Suzanne L. Montgomery
AT&T Services, Inc.
Dallas
TOPICS:
I.
Selecting an Expert
 Expert Qualifications
 Due Diligence
 In-House Counsel Perspective
 Experienced vs. Inexperienced Witnesses
 Considering Multiple Experts
II. Preparing and Developing the Expert Opinion
 Documents and Data
 Causation Opinions
 Damage Theories
III. Expert Reports
IV. Use of Experts in Addition to Trial Testimony
 Common Uses
 Discovery and Depositions
 Mediation
 Arbitration
I. SELECTING AN EXPERT
Determine appropriate professional discipline (e.g., accountant, economist, real estate appraiser, engineer,
medical expert, etc.)
Determine the expert’s qualifications:
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Skills
Knowledge
Education
Credentials
Training
Experience
– Professional Experience
– Testifying Experience
● Communication Skills
● Style
● Competitive Concerns
I. SELECTING AN EXPERT - CONTINUED
Due Diligence Regarding Expert’s Background:
● Find out ahead of time:
– Prior Excluded testimony
– Bias/Plaintiff-Defendant
– Prior testimony on similar matters
– Have you worked with/against opposing counsel/firm/party in the past
– Publications/Speeches
– Social Media
– Firm Website
● Contact prior attorneys who worked with/against the expert:
– Reputation
– Responsiveness
– Persuasive communication
– Strength/weakness
– Communication/testimony style
I. SELECTING AN EXPERT - CONTINUED
In-House Expert:
● Advantages for selecting in-house expert from client:
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Intimate factual knowledge of the subject matter
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Lived through the issue, and less of a learning curve to overcome
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More knowledgeable about the bigger pictures issues impacting the business
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Sensitive to the potential impact of the testimony on the client’s business operations or other pending litigation
● Disadvantages to client as expert witness:
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Bias or motive – loyalty to employer
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Possible financial interest in the lawsuit (salary/bonus)
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Unlikely to have the same academic credentials as a retained expert
● May consider having both in-house expert and independent expert
I. SELECTING AN EXPERT - CONTINUED
Experienced Witness:
● Brings a range of prior experience which may be valuable
● Understands the process
● Sensitive to the pitfalls of discovery
● May have developed persuasive methods to explain complex technical facts to a jury
● Aware of the sense of urgency needed to respond to the unpredictable demands of litigation
● Should be more cost effective
Inexperienced Witness:
● Shorter track record of prior testimony provides less ammunition for cross-examination
● May mitigate the appearance of a “hired gun”
II. PREPARING AND DEVELOPING THE EXPERT OPINION
DOCUMENTS AND DATA
● Complaint and Response
● Price Lists
● Counterclaim
● Customer Lists
● Contracts and Agreements
● Sales Invoices
● Financial Statements
● Sales Commission Reports
● Management Reports
● Marketing Materials
● Business Plans
● Customer Surveys
● Budgets and Variance Analyses
● Market and Industry Data
● Minutes of Board Meetings
● Margin Analysis
● Correspondence
● Engineering Studies
● Depositions
● Alternate Product Designs
II. PREPARING AND DEVELOPING THE EXPERT OPINION – CONTINUED
Causation Opinions
● Establish the connection (or lack thereof) between the cause of the action and the damage suffered – Loss may be
attributable in whole or in part to some other cause than the defendant’s actions.
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Sufficient facts or data
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Product of reliable principal and methods
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Principal and methods reliably applied
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Causation versus correlation
● Can a financial expert establish causation?
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Plaintiff’s theory of the defendants’ wrongful conduct
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How the plaintiff alleges the defendant’s wrongful conduct caused damage
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How the defendant alleges it did not cause the plaintiff’s damages
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Whether the plaintiff’s damages could reasonably be expected to have flowed from the defendant’s wrongful conduct
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Other factors that may have caused or exacerbated the plaintiff’s damages
II. PREPARING AND DEVELOPING THE EXPERT OPINION – CONTINUED
Damage Theories
● Quantify damages
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Permanent vs. Temporary Loss
 Lost profits
 Lost value
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Actual But For Damage vs. Consequential Damage
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Expectation Damages
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Reliance Damages
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Rescission/Restitution
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Punitive Damages
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Generally Accepted Damage Methods
● Rebut opposing damage calculations – Identify weaknesses, errors, and flaws in the methodology utilized by opposing
experts.
III. EXPERT REPORTS
● Which experts are required to provide report?
– “Specially retained”
– What about in-house experts?
● Detail/Stands on its own
– State court disclosure vs. Federal court
● Tells Story
– Supported by documents/deposition testimony
● Consistent with facts/deposition testimony
– Reasonable/common sense
● Damage models based upon generally accepted methodologies (reference)
– Generally accepted methodologies
– Referenced to recognized sources
● Counsel should read report in full
– 2010 Amendments to FRCP 26
– Role of in-house counsel
IV. USE OF EXPERTS IN ADDITION TO TRIAL TESTIMONY
Expert witnesses can provide assistance beyond their expert testimony, including:
● Providing insight into industry/business issues
● Identifying sources of financial information
● Helping in development of interrogatories and interpreting answers
● Investigating damage assessments
● Identifying strengths and weaknesses of the case
● Analyzing causation
● Identifying individuals to depose
● Preparing deposition questions
● Assisting in mediation and other settlement negotiations
● Supporting dispositive motions
● Preparing exhibits and demonstrative evidence
● Non-testifying expert can consult with counsel, including in-house expert
Competent expert witnesses are critical to complicated cases. Even if a case doesn’t go to trial, a credible expert can
assist in evaluating the case and settling the case for your client.
II. USE OF EXPERTS IN ADDITION TO TRIAL TESTIMONY – CONTINUED
MEDIATION
● Alternative Damage Calculations
● “What If” Analysis
● Defend Approach
● Attend Mediation
II. USE OF EXPERTS IN ADDITION TO TRIAL TESTIMONY – CONTINUED
ARBITRATION
● Expert Testimony
● Rebuttal Testimony
● Consulting
● Different Rules for Discovery
TOP 20 LIST FOR DEPOSITION
1.
Read their report beforehand
2.
Review their workpapers
3.
Have your expert read report and provide comment
4.
Find areas of agreement with your expert
5.
Find areas of disagreement
6.
Do your homework on their area of expertise (standards, etc.)
7.
Have your expert attend deposition
8.
Ask short questions
9.
Understand assumptions and facts used
10.
Ask them what their opinions are early on
11.
Listen to their answers
12.
Be humble
13.
Do not argue
14.
Do not cut them off
15.
Understand documents relied on
16.
Do not tip your hand
17.
Ask intelligent questions
18.
Do not wing it
19.
Forget the hypothetical unless….
20.
Do not ask open-ended questions on cross