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Tips for making the most of experts

By Gary Gosselin
Dolan Media Newswires

Experts can be the bane of a trial lawyer’s existence, but they can also be saviors.

To increase the chances that your side has a good expert, legal insiders say, use common sense and do your homework.

“I rely upon a list I developed, but if someone I need is not on the list, the next step is to contact colleagues for one they’ve used, or a lead on one,” said Michelle Harrell of Maddin, Hauser, Wartell, Roth & Heller PC in Southfield, Mich.

After that, she starts looking on the Internet, but cautions once you start wading in that pool, it’s easy to drown.

Harrell, manager of the firm’s general and complex litigation practice group, said she has not had much luck with expert listing services, but suggested checking out court databases to see how some verdicts turned out, and experts can be culled from those cases.

“In the insurance agency realm, there are not a lot of options; you tend to use those you used before, and get from colleagues,” said Richard Joslin of Southfield-based Collins Einhorn Farrell PC. “If you’re in a strange or unusual area, like a nurse, you may go to a nursing school to find someone who might point you to that type of work.”

He added, “If you’re looking for an expert, there’s really two ways. The first way is by relationships you develop over the years, you get to know the people in the industry you work with, you know who the players and the experts are.

“Another way is through consultants and people who [used experts] through word-of-mouth. Most experts that are qualified usually publish, and you can find them on the Internet.”

Caveat emptor

Stephen Hilger of Grand Rapids-based Hilger & Hammond PC said background and credentials are important. He likes to deal with experts he knows.

But, when dealing with someone new, he said, “You really need to check out their background; see what cases they were involved in and if that’s what you’re looking for.

“You can find a lot of the information they have online, you can get all kinds of affidavits and statements they have made, and see if what they say is averse to what you’re doing.”

“Credentials are extremely important,” Harrell added. “I get their CV and thoroughly look through it — that’s your case, your reputation, too. Just because someone’s a CPA or a broker that doesn’t mean they are qualified to testify on everything, and if they’re not, they can be disqualified.”

Not all experts will tell you of prior conflicting testimony that they may have given, Harrell said, noting that you and you do not want to be unpleasantly surprised after committing to use a particular expert.

“That’s why before you marry an expert, you have to do your due diligence,” she said. “They are trying to sell themselves, they say they can support you and can give expertise and knowledge, but if you find something to the contrary, that’s important.”

If there’s a problem, it will usually come across during the first discussion with the potential expert, Joslin said, noting that your own client is usually your best expert and give great background on what to expect.

“On the medical side, the Internet is a great tool; there are sites to check out board certs, for experts and standard of care issues, for licensing issues, and you can do FOIA to department of licensing and regulation,” Joslin said. “Also on the medical side, the hospitals have vetted them for you, they have access to specific databases, so when you have someone on staff at a hospital, they have done it. It’s the guys on the periphery, construction area or something along those lines that may be harder to vet.”

Watch out for someone that’s totally a “yes man,” Harrell warned.

“That should be a red flag. There are a lot of instances where it’s ‘A’ or ‘B’ and there might be limits to what they can say.”

She also warned about someone from academia, because they tend to be trained more to see different possibilities, and that could be a problem if they see the possibilities your opponent is offering.

A trusted partner

There are two schools of thought about using experts: get with them early or have them at the ready if you really need them. Most prefer the former.

“I’m of the school of thought that you engage an expert early; there are often angles in a case that I may not see, so I try to get input early,” Harrell said. “You don’t want to just list experts and hope you don’t have to use them. They help flush out damage concepts, they help win your case, and you don’t want to wait until the last minute, because if they don’t have what you want, you can’t go back.”

She admitted it’s likely more expensive but, “[i]f you manage experts’ time properly, it’s not too bad, and I find that they can help significantly. They want the engagement, too, so they want to prove they can be useful to you early on. [It’s] rare I will use an expert that says, ‘$10,000 up front,’ I prefer a partner rather than a consultant that the clock is always running.”

Hilger agreed that many experts, in hopes to get a gig, do aim to please, so judging them takes some skill and practice. One thing is crucial, he said, and that is their agreement to do their due diligence.

It’s vital, he said.

“You ask 100 lawyers and get 100 answers on how to prepare; I give the expert access to all records and depositions in the case; even if it’s 100,000 pages, I give them everything,” Hilger said. “They can see what’s important and maybe tell me what is important.

“There’s a difference in philosophy about the use of experts. A lot want their expert to rubber stamp the case; others would rather the expert perform independent analysis. I prefer independent analysis.”

He said if the expert has access and does the legwork, he or she will be so much better versed and will be able to talk confidently about their finding in court.

“They know the answer inherently; they come across with much greater credibility. Some lawyers say, ‘Fill in the blanks.’ I am not one of those,” Hilger said.

He cited a recent case where the expert had staff do some research on a case and he only gave it a cursory look-over.

Hilger asked his expert if he researched the issue and documents and information related to the case. The expert said yes, he had rolled up his sleeves and looked it all over thoroughly.

“And when I cross-examined on the other side, I posed same question, and he said, ‘I have a large staff.’ He spent 11 percent of the time doing analysis, so how can he know? I questioned him on 10 critical documents that he had seen for the first time in the case.”

Trial is theater

Looks don’t mean anything. They mean everything.

OK, an expert’s appearance isn’t usually a make-or-break issue, but it is part of the theater that is trial and counts for something.

“Presence matters a lot, especially a jury trial. There is a lot of theater,” Harrell said. “You want to see what their speech is like, their temperament, are they arrogant, easygoing, official-sounding. Certain experts you want a certain appearance. A financial expert has to have a certain look — the older, gray-haired gentlemen — and I think that comes from television.”

Appearance is important but down the list a way, Joslin said. A good expert is someone who can teach the jury, to explain the “hows” and “whys” of the issue.

But there are limits.

“You don’t want someone with mannerism that may get the jury distracted,” Joslin said. “Steven Hawking would be a good example. He’s eminently qualified, but his handicap would be a distraction. In med-mal, you want a guy with a Marcus Welby look. In my experience, gender doesn’t matter that much; it’s an ability to explain.”

Joslin said he looks for experts who are willing to testify live at trial.

“It shows more interest by the expert and keeps the interest of the jury, and allows expert to interact with a presentation better than on a video,” Joslin said. “And the bottom line is, you have to teach the jury, you get a better sense of believability, and as a lawyer you can judge how their testimony is received when they are live and adjust if needed.”

Hilger said his take on theater — or lack thereof — is the demeanor of the expert. If the expert comes off as a strong advocate rather than as “independent,” that can certainly hurt. He acknowledged that the concepts of advocate and independent are really murky when you talk about your own expert, but perception by a jury is reality.

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