If your company is facing litigation, especially in high-stakes cases, one of the first questions you and your counsel should address is whether the testimony of an expert witness might be helpful, or even essential, to your case. Expert witness testimony comes into play, as stated in Federal Rule of Civil Procedure 702, whenever “the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Whether the trier of fact is a judge or a jury, if one of the issues in the case could not be fully determined by a layman without the assistance of someone with specialized knowledge of that issue, then expert witness testimony should be employed. Experts regularly offer testimony on a wide range of issues, including the computation of damages of all sorts, complex explanations of technology in intellectual property litigation, economic and statistical questions, and many other subject areas.
As noted, the expert should be engaged early in the progress of the case, because the expert can provide helpful advice on framing the issues and valuable assistance in the discovery process and evaluation of the evidence. The strategic decision may also be made to hire an expert that will not ultimately provide testimony at trial, but instead, is engaged as a consulting expert to assist with the foregoing. Whether a testifying or consulting role is anticipated, once the need for expert witness assistance is identified, then the search for the best person to fill that role begins. But where do you find a person who is willing and qualified?
There are, broadly speaking, three sources for expert witnesses: they can either come from the world of academia, from services or consulting firms that provide “professional” experts for use in litigation, or they can simply have worked in the industry or area that is the subject of the issue to be determined, such that they have gained the experience and specialized knowledge that would qualify them as experts in the particular field. Each of these backgrounds has its advantages and potential drawbacks, both from a testimonial and cost perspective, and your litigation counsel should carefully vet the potential expert, taking this into consideration, as well as the expert’s “track record” and how he or she would come across to a judge or jury. Experts from the academic arena often have impressive lists of honors, degrees, and publications that lend weight to their opinions in the eyes of the fact finder. Professional experts may have a long list of courts in which they have been qualified as experts, and a sense of ease and authority in the witness chair. And someone from the industry at issue may have appeal on a personal level and the “street cred” with which a jury might identify. On the downside, a haughty academic, a “hired gun” professional expert, or a highly experienced industry veteran who is awkward and/or unaccustomed to presenting testimony may do as much harm as good to your case. Therefore it is critical that your counsel carefully screens the potential experts and fully inform you as to the considerations to be taken into account for each potential expert.
As helpful as expert witness testimony can be in determining trial strategy, leveraging settlement discussion, and carrying the day at trial, it does not come without a price, and expert witness testimony can easily add many tens of thousands of dollars to your company’s litigation budget. Accordingly, while it is beneficial to engage experts early in the process, it is critical that an estimate is provided by the expert so you can attempt to manage your litigation costs. Your expert should fully explain his or her rates and ideally would utilize assistants or associates that might bill at a lower rate to handle, to the extent possible, the ministerial matters, research, document review and other tasks that provide background and support for the expert’s testimony. While it is impossible to predict the cost and fees with absolute precision, an estimate and budget are critical not only for case management purposes but also to factor into the costs of litigation versus settlement.
In sum, the testimony of an expert at trial might be the factor that resolves the “he said, she said” in your company’s favor. And in complex and technical litigation, an expert is often the key to having the judge or jury understand what is at issue and why your case has merit and why your company should prevail. Therefore, with the case’s success often hanging in the balance, the selection, retention, and utilization of an expert witness should be an early and critical component of your company’s overall litigation strategy.
About the Author: Paul Mengel is counsel with PilieroMazza and leads the Litigation Group. He can be reached at [email protected].