Financial experts can play a critical role in litigation, whether it involves commercial or civil damages, divorce, estate, or a criminal trial. In addition, they can provide objective information and insight to support attorneys and business owners with expertise in economic damages, complex support calculations, business valuation, and fraud analysis.
Having worn both litigator and expert hats, I have discovered a few nuances on how attorneys and experts can work together to help a case proceed more smoothly toward resolution. Following are some “best practices” litigators in all areas of practice can benefit from.
- Do I need a financial expert?
This is a crucial question to ask at the outset and throughout the engagement. Consulting with the right expert with the relevant qualifications, experience, and credibility in the subject matter is important. A reliable and honest expert will tell you when assistance can add value as well as when the ongoing costs of services outweigh the benefits.
- When do I engage the expert?
Consulting with an expert at the outset of an engagement can assist with the preliminary assessment of claims and evaluation of the strengths and weaknesses of a case. An initial review of the relevant documents by an expert can often prove useful in setting realistic expectations for the client and developing appropriate strategies to proceed. Waiting too long to engage an expert may impact the case if critical questions or information has not been obtained.
- How do I use the expert?
Litigators may use an expert solely to provide guidance for discovery and deposition questions, or from the initial client meeting through the trial. The expert’s role also may be limited due to budgetary restraints set by the client. Whether limited or broad in scope, define the role clearly, so the impact and value of hiring an expert is maximized.
- What information does my expert need?
Most experts will have a list of standard items they want to review to get a “feel” for a case. That list may be tailored based on the background information provided, the type of industry, and the venue, among other things. Share information liberally with your expert so they can determine what is relevant and important. Limiting what the expert sees in an effort to save costs could significantly impact the case, particularly if crucial information is withheld.
- Is the expert just a hired gun?
Experts are not merely witnesses or hired guns. Experts have an obligation to maintain objectivity in the presentation of their analysis and opinion to the client and to the court. This does not mean, however, that counsel and the expert cannot collaborate. Consistent communication between counsel and expert will allow for careful analytical work, firmly supported opinions, and presentation in an articulate, forthright manner, which can be the difference between winning and losing a case.
- How can I best help the expert I hired?
Communication is key. There is nothing more fundamental. Introducing the client and expert at engagement is crucial to establishing the relationship and maintaining open lines of communication. Counsel should educate the expert on the key legal and factual components of the case. Counsel should also ask questions; if they do not understand, it is likely that the client, the hearing officer, judge, mediator, and/or jury may not understand either. Providing crucial pleadings and discovery documents to your expert as you receive them will allow the expert to stay informed as to the progress of the case. Keep your expert apprised of all dates and deadlines to ensure availability and preparedness. Be clear about the deliverable(s) expected. As the case evolves, discuss the impact with your expert.
- How can my expert best help me and my client?
A well-qualified expert will educate counsel and the client on the financial fulcrums based on the legal and factual lens provided by counsel. The expert should be able to provide you with a clear and concise explanation. Keep in mind that the expert’s ultimate role is to help the judge or jury understand; if they cannot do so with you, it is unlikely that they will be able to do so during testimony.
The expert can also assist counsel with managing client expectations, creating targeted discovery, determining deficiencies in the opponent’s production, providing insight on the merits and supportability of claims, evaluating settlement proposals, preparing for negotiations and interim stages of litigation, evaluating weaknesses in the opponent’s and (sometimes more importantly) the client’s case. Your expert can, and should, assist with preparation for trial such as preparing the direct examination outline or questions as well as analyzing the opposing expert’s report and preparation of cross examination avenues.
Best practices for working with an expert can be summarized in two points: Engage early and communicate often. If used effectively, experts can be a valuable member of your litigation team. By following the above guidelines, you can leverage experts to strategically improve your cases and outcomes.