Don't Annoy Your Expert Witness: Useful Tips for Attorneys

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By Bruce Kaufman

Aug. 18 — What annoys expert witnesses the most when working with lawyers? Not being involved with scheduling, says economics expert Marc Bendick Jr.

Bendick, a principal with Bendick & Egan Economic Consultants Inc. in Washington, has appeared as an expert in more than 200 employment law cases.

What galls experts the most is not being informed about alterations in pleading posture or the feasibility of new deadlines before attorneys adopt the change, he said.

“Think of the expert as part of your team,” he said.

“Make sure that when making key decisions that the expert is part of the discussion about how things might work well,” he said.

For litigators, the most challenging part of working with experts is balancing what experts want to say and what the legal system requires, said employment law attorney Laura Ho, of Goldstein, Borgen, Dardarian & Ho in Oakland, Calif.

This is especially demanding if you're not using a “seasoned litigation expert,” Ho said.

There is always a pull between what is reasonable in a particular case and the expert's desire to present a “Cadillac report” that may not be needed in the case, she said

The comments came at an Aug. 11 webinar, “Working With Statistical Experts,” sponsored by the Impact Fund. The group's website says it provides “strategic leadership and support for litigation to achieve economic and social justice.”

Although geared toward employment litigators, the comments offer helpful advice for litigators in all practice areas that depend upon expert witnesses.

Why You Need an Expert Witness

Which cases benefit the most from early retention of statistical experts?

Ho, a specialist in employment law, said:

  •  Employment discrimination cases, based either on disparate impact of employment policies or disparate treatment of workers; and
  •  Wage and hour cases, based either on “overtime misclassification” or “compensable time.”

Ho said statistical experts should be retained as early as possible in these cases.

In employment class actions, the first appearance for these experts will likely come when litigating whether class members have suffered the same harm as each other and the named plaintiff, she said.

Statistical experts will be needed to explain whether a class action will be more efficient than individual lawsuits, and to provide assurances that “individual issues won't swamp common issues,” she said.

Later, the expert will be needed to show the existence of a pattern or practice or disparate impact, and to prove aggregate damages, she said.

Bendick said experts will typically be assigned distinct tasks in complex employment law cases.

A statistical or economics expert will likely be asked to do the analysis that demonstrates or challenges disparate impact. And an expert in industrial and organizational psychology will likely be needed if the issue shifts to business justification.

Bendick said litigators need to appreciate that experts are often asked to sort through voluminous data in employment law cases.

Cases based on payroll records are especially burdensome and may involve “thousands of records,” he said.

Tips for Working With Experts

Bendick and Ho offered practical advice for working with experts.

Never encourage experts to express opinions about fundamental or ultimate issues, or legal conclusions, they said. Legal conclusions are the domain of courts, Bendick said.

For example, this means experts shouldn't be encouraged to say that the results show “a disparity between men and women.”

Instead the expert should be asked about the likelihood, or statistical probability, of this disparity occurring in terms of standard deviation.

But this kind of information doesn’t always communicate well to judges or juries, Bendick said.

Thus, attorneys should encourage experts to offer “rhetorical flourishes” that will boost comprehension.

Try to use phrases like, the odds of this happening by chance are like “finding one star in a whole universe or one grain of sand on a beach,” he said.

When more than one expert is needed in a case “try not to have them rely on each other,” Ho said.

This way, “if one falls” in an admissibility challenge, “it doesn’t take the other expert down as well,” she said.

Additional tips for litigators working with experts:

  •  When asking experts questions, don't ask the expert to use the legal term “allegation.” Experts are more comfortable with terms based on a “hypothesis.”
  •  Experts should explain their opinions two ways, formally and for lay people.
  •  Don't use experts who “bend too much” or try to be “an advocate for you.”
  •  Expert reports should always summarize the findings up front.
  •  Experts should be encouraged to use lots of footnotes, to document data and to show they are “steeped in the case.” Repeated references to scientific studies also help show that the expert's opinion is grounded in professional literature.

On the latter point, Bendick said that ample use of footnotes is “not just window dressing.”

It's useful for surviving admissibility challenges and it carries weight with judges, Bendick said.

Get the Most Out of Your Expert

Expert witnesses are often the most costly component in litigation. As such, it's best to begin the process early, Bendick said.

It's also essential that you have an expert who can stand up to an admissibility challenge based on the U.S. Supreme Court's seminal test in Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993), Bendick said.

To find the best experts, you need to do serious research, he said.

Ask prospective experts for prior depositions and reports, and get references from other attorneys, Bendick said.

After securing an expert witness, you should strive for maximum value.

Starting with discovery, use your expert to help develop discovery plans and document requests.

It's especially useful to “have your expert help fashion opposition deposition questions,” Bendick said.

And consider using your expert in mediation and settlement talks, Ho said.

Even if neither side's expert has filed an expert report by the time mediation and/or settlement talks take place, if both side's experts are present you can use your expert to “get a better sense of what the other side is thinking,” Ho said.

A final warning: If your expert does provide a report for use across the table at mediation and settlement talks, be sure to mark the report, “For Settlement Only,” Bendick said.

That way it won't bind the attorney or the expert in other aspects of the litigation, he said.

All this comes at substantial cost, Bendick said.

“Be prepared for a long, tough fight that will take a lot of resources,” he said.

And remember: Experts get paid whether the attorney wins or loses the case, Ho said.

To contact the reporter on this story: Bruce Kaufman in Washington at bkaufman@bna.com

To contact the editors responsible for this story: Steven Patrick at spatrick@bna.com and Jeffrey D. Koelemay at jkoelemay@bna.com

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