“What happens when my company gets sued or needs to sue?”: The importance of experts in business cases. (Part 3)

Expert Meeting _ 1This article’s previous installment canvassed the mechanics of early pre-trial activity and the discovery process, with particular focus on business cases. Holmes PLLC frequently handles commercial disputes, which invariably depend on expert witnesses. Experts fall into four categories:

  1. Discoverable Consulting Experts – an expert who is consulted and specifically engaged by a party in anticipation of litigation and who may provide reports, but who will not testify at trial. If their work product is used or reviewed by testifying experts, then much information about them can become discoverable.
  2. Retained testifying experts – an expert who may be called to testify as an expert witness at trial and whom one side has employed or engaged for that purpose.
  3. Non-Retained testifying experts – an expert who is going to testify at trial, but has not been engaged by the party calling the expert witness (i.e., an ambulance driver following a car wreck, or a landman involved in a disputed oil and gas lease).
  4. Non-Discoverable Consulting Experts – a consulting expert whose opinions and reports are not relied upon by a testifying expert and, thus, who should remain exempt from discovery.

Expert witnesses play an essential role in the litigation process, particularly in business cases. No matter how simple or complex a case may be, experts most likely will become necessary. During litigation, each side will often employ an expert or multiple experts to aid in substantiating their claims, defenses or sub-parts thereof. More specifically, experts use their specialized knowledge in a particular subject area in order to aid in proving certain elements of a claim or defense. For example, if an oil company were defending a case involving the underpayment of royalty owners, then each side would hire specialized accounting experts in order to assess the oil company’s accounting practices – to reach a conclusion that the same complied with, or failed to comply with, lease requirements and applicable law. If a bank officer serving as trustee were defending a case involving his alleged breaches of duty or dereliction of duty, then each side would hire specialized fiduciary-duty experts in order assess the trustee’s conduct – to reach a conclusion that he adhered to fiduciary duties or failed to do so. If a company complained that its competitive disparaged its business and took actions to injure the company’s reputation in the banking community, then each side likely would hire experts on why certain banks refused to provide financing to the company making the complaint.

But Holmes PLLC hires experts for reasons beyond proving a particular aspect of the case that only expert-witness testimony can establish. Often, lay witnesses or other evidence can establish a certain key fact in a case, in a technical way. Why use an expert then? Good experts have credibility and communications skills that lay witnesses frequently do not have. Also, experts can become teachers in the courtroom; experts can enjoy wide latitude from the trial judge and can provide useful background information or collateral information that enhances the specific key fact to be established. Experts can liven up the trial process. Juries that find trial testimony interesting are much more likely to pay attention to and ultimately to understand the case that Holmes PLLC presents to them.

Business cases invariably involve lots of paperwork and lots of “terms or art” and specialized business concepts. Experts – whether they are fact witnesses to the transactions at issue or are specially retained – must help juries and judges to navigate the business case.

Holmes PLLC retains only experts who truly have knowledge and mastery of the subject matter for a particular case. Holmes PLLC thoroughly interviews every potential expert; and multiple factors determine the right expert for a particular task. First, the firm must perform a conflict check in order to ensure that the expert can work for, or against, certain parties involved in a case. The expert must not only work with your client, but also be able to work against the opposing side (i.e., the expert cannot be currently employed by the opposing side and cannot have worked for the opposing side on a similar or substantially similar matter). Once the expert clears a conflict check, a comprehensive examination of the expert’s resume and experience occurs. A complete assessment of the expert’s writing and testifying skills must happen too. Even if an expert is strong at written expression, the same experts must be a strong testifying expert at deposition or trial. Holmes PLLC asks these questions: Has the expert testified so inconsistency in the past with his present position that he has become a target for rigorous impeachment? Has the expert’s experience shaped her in order to be able to convince a jury that she truly understands the subject matter on which she is opining? Also, the expert must have certain intangibles and superior communications skills to be effective while working with the firm and while testifying: Is the expert personable, while being authoritative? Is the expert credible, and does he react in a measured manner when his credibility is called into question? Does the expert react well to entertaining the firm’s suggestions and fielding the firm’s questions? Does the expert work well with the litigation team, which may include other experts and various lawyers of differing ages and levels of experience?

Once an engagement letter is signed and the expert is retained, the process of making the expert “knowledgeable” about the particular case at hand begins. The expert needs to have a full understanding of what she will testify to or write about – in order to ensure that her opinions are consistent with all aspects of the case, as well as being responsive to other experts involved. The expert should receive all relevant non-privileged information. What the expert receives is generally discoverable, particularly if the expert relied upon such material when forming opinions. And, it is important to remember that even though an expert is part of one side’s litigation team, the expert does not enjoy the benefits of an attorney-client privileged relationship. Therefore, what the expert sees or hears usually becomes known to the opposition.

Given that the firm’s clients pay for specially retained experts, Holmes PLLC ensures that the expert knows the limits for time spent on tasks like preparing for testimony or preparing a report or other written work product. Holmes PLLC provides cost controls for its clients, though the firm will not sacrifice quality work product from experts.