Top 10 Practical Tips for Working with a Commercial Damages Expert
# 10. Hire your expert early.
Few lawyers do this, and it is one of experts’ biggest gripes. Ironically, lawyers often bring the expert on a short while before the expert disclosures are due, and the expert is saddled with what the lawyer decided was important. Isn’t the main point of bringing on an expert to get their expertise for some part of the case that we cannot prove without the expert?
Getting the expert involved early also allows the expert to help frame discovery and take a hard look at your damages case. The lawyer’s damages theory or assumptions might be flawed and having the expert involved early may allow the lawyer to reform his theory with time to change it.
# 9. Give your expert all relevant documents, not just the good ones.
It is a major credibility loser when your expert cannot testify that he knows about certain harmful documents. This arguably is more important than your expert seeing the favorable documents. I call this the three-strikes rule – your expert can only handle three major strikes to his credibility. A corollary of this is that your expert should concede harmful documents and facts, particularly when they are not on material issues. It looks a lot better for your expert to concede something harmful than not to know about it in the first place.
#8. Pick up the phone!
Whatever you communicate in writing to your expert is going to come back to haunt you. E-mail may be the deadliest tool ever invented when it comes to working with an expert. With every e-mail you send to your expert, you should be imagining how that e-mail is going to look when a trial graphics firm blows it up at trial. Similar to e-mails, limit the number of draft reports communicated between attorney and expert. You don’t want eight drafts of your expert’s report that shows every change the expert made to his own report, or worse your changes to his report. This means more in-person meetings, or when working remotely, on-line meetings with services like Meeting.com.
#7. Interview and prepare the expert like he is a rookie, even if he is a veteran.
Interview your expert like you just met him for the first time and mock cross-examine him during that interview. Ask your expert how many cases he has testified in. Ask which judges he has testified in front of. Ask if he has ever been disqualified or not accepted as an expert. Ask how many times he has testified for plaintiffs or defendants. In short, interview and prepare your expert as if it were his first time testifying.
#6. Be reasonable with your number.
Don’t be greedy. A greedy lawyer often will get his expert into problems. For example, your expert is telling you that based upon his assumptions, he can only calculate three years out for lost profits and in year 4 they become speculative. But you as the plaintiff’s lawyer wants to double the damages by adding years 4 and 5. That decision could render the expert not credible and you get zipped. Ask the expert what is reasonable and why, debate it and work it out. Make sure also to hire the right kind of expert for your case – don’t try to put a square peg into a round hole. Try not to make an accounting expert that testifies mostly in divorce cases testify in a health care consulting contract lost profits case, unless that expert is really going to get up to speed on that business or industry. Take your time to find the right expert with the right expertise. It will save your client money when an expert knows the area and has testified in that area before.
#5. Think of your expert as Ms. Crabtree who just happens to be wearing a nice suit.
Your expert should be a teacher – if she can’t teach, she’s not a good expert. To teach well, your expert has to be able to create visual images through her words that will stick with jurors. Your expert always should use charts and graphs as demonstrative teaching aids. And don’t forget what a great advocacy tool this is. Your expert will have greater flexibility with using demonstrative aids that support your fact witnesses. Use your expert to hammer home not only her opinions but your theme of the case. Finally, make your expert stand up in front of the jury – motion and action are good. It keeps everybody awake and listening.
#4. The most important acronym for your expert is not GAAP or GAAS – it’s KISS.
There might be no more appropriate place to apply the cliché phrase KISS than working with an expert. Probably the hardest challenge for your expert is to keep it simple yet cover what he needs to. Accounting concepts are abstract, and they can be a bottomless pit of complexity.
To ensure your expert’s testimony is comprehensible, recruit some staff from your office who know nothing about your case, and have your expert testify for a half hour to them and get their feedback. It is also a good idea for the attorney to help the expert break down complex concepts by simplifying terminology: for example, instead of having your expert testify that the “corporation’s principal embezzled funds from the corporate operating account and the funds were traced off shore” have him testify that “the company president stole money by writing company checks to himself and depositing those checks in the Bahamas.”
#3. Ensure that your expert will remain Dr. Jekyll and not turn into Mr. Hyde during cross.
Make sure your expert is the same person on cross as he was on direct. Prepare him that he is only there to give an opinion. Remind him that he is not an advocate. Encourage him not to get frustrated, or even he does, not to show it. Prepare your expert well on the key issues and themes so he knows what not to fight on and what to concede. Studies show that juries often focus more on nonverbal cues and the expert’s tone of voice than the content of his testimony. If your expert appears frustrated, angry or flustered, that likely is what the jury will remember.
# 2. Actively manage the expense and time of your expert.
Give your expert a budget . . . and then subtract several grand. Be clear on your needs and the types of opinions you are seeking. Ask what is the testimony or report is going to cost. When you’re working with an expert, a month may be too long between bills. Work it out up front with the expert where you’ll get weekly or bi-weekly WIPs (work in progress reports) to monitor progress and unbilled time. Put ceilings on monthly bills. Consider a flat rate or modified flat rate for investigation and research, preparation of expert report, deposition testimony, and trial testimony.
Give your expert a litigation time line and make expectations and deadlines clear. Tell your expert up front when the discovery cutoff is. Tell him when his deposition likely will occur. Tell him when the opponent’s expert’s deposition likely will occur. Tell him when you expect to get him the documents he needs to start developing his opinions. Give him plenty of lead time to prepare his opinions or report. Be clear on your needs, your expectations, and the opinions you are seeking.
# 1. Change your expert’s greatest weakness into a strength.
Your expert may have a background weakness or maybe he has some prior testimony that seems inconsistent on the opinions you want him to give. You have three choices on how to treat the weakness: (1) ignore it – that can be deadly; (2) explain it – that’s better than ignoring; and (3) the best course is for you to transform the weakness into a strength by building your case theory around it so it is no longer a weakness.
When working with your expert on his opinions, think about what you would emphasize if you were going to cross your expert. Is the expert biased? Has the expert testified for you in 10 prior cases? Has the expert never testified for a defendant? It might be an assumption that was made. Was the expert’s calculation of lost profits beyond 3 years too speculative?
A good cross by the other side may do little more than exploit two weaknesses of your expert. Your job is to find the holes and plug them. Better yet, be creative and build your case around them. The only way you’ll be nimble enough to do that, however, is to have your expert on board early.
Adam T. Rabin is a shareholder with McCabe Rabin, P.A. and concentrates in business litigation and plaintiff-side securities arbitration. He can be reached at arabin@McCabeRabin.com.