Is it Love?? Between an Attorney and an Expert??

AKA Attorney's interaction with Experts

A good attorney friend recently was asked to speak at a Litigation Conference on “Attorney’s Interaction with Experts”. He asked for my input. I told him with 42 years’ experience, I thought I could come up with a few insights. I thought sharing what I think makes a good attorney/expert relationship might be helpful to attorneys just beginning to work with experts.

I have had really good experiences, average experiences and, as my mother use to say “if you can’t say something nice, don’t say anything at all” experiences with attorneys. I work with both plaintiff and defendant attorneys.

Let’s start with, “Why do you want an expert?” The answer should be to find out and report what really happened.

What an expert should do for the attorney:

1. Thoroughly investigate the matter. I have spent 42 years developing and protecting my professional reputation. I cannot and will not produce a document that does not convey the complete examination and logic of the analysis and conclusions. I attempt to produce a report that conveys the truth and the logic of the conclusions that can be followed and evaluated by opposing counsel, insurance adjustors, claim managers, and the jury. I appreciate it when an attorney allows me time to fully investigate the matter. I fully understand that a client cannot, will not, does not want, to spend a substantial amount when the claim has a small recovery potential. An experienced expert might not be the way to go if the case has a very small cap. A certain amount of work, study, testing, literature review and time to do a professional report must be spent by an expert to fully examine a set of facts. Limiting an expert to a specific budget amount can definitely hinder your case. Because the work for each case varies, it is very hard to budget for a particular case. Generally, I review photographs and basic facts. That can usually be accomplished within the context of the original retainer. After that, the investigation can go in many different directions including laboratory testing, Keyence digital photography, additional examinations, exemplar and even destructive testing, all which can quickly add to the cost. If the expert is doing a thorough job depending on results, the report can easily be from 50 to 200+ pages. Depending on the testing, the cost can be fairly significant. However, if results are negative to the client’s interest, then those results usually preclude the need for an extensive report.




2. Give honest results. A competent, honest expert cannot control the results. As an expert I can only interpret the results in light of the problem. The goal of the expert investigation is to find out the facts and then develop the theory that supports the facts.




3. Prepare the attorney. This is where the attorney/expert relationship becomes very important. The attorney should be willing to listen to the expert and learn as much as possible regarding the outcome of the expert’s findings. And, the expert should be capable of putting into layman’s terms the findings to assist the attorney and others involved in the matter in a way that provides helpful information for the client.

What an attorney should do for an expert:

1. Retain the expert as soon as it is determined that an expert is needed. This allows the expert to assist with determining the best manner to pursue finding the truth.




2. Allow the expert enough time to thoroughly test, research and prepare their results. The more time the expert has to review basic information, test results, other expert reports and depositions, the better grasp and more all-inclusive will be the investigation results. Because of expert’s years of experience, they can sometimes suggest additional experts and expertise that will be helpful in the evaluating the subject matter.




3. Communicate with the expert and keep them up to date on the status of the case, the information provided for the case and the important expert designation, report and deposition deadlines.  Giving the expert enough time to prepare for a deposition or for a court filing is fundamental to the success of a case.

Pay the expert and pay on time. J.E.I. Metallurgical, Inc. is a one expert, small “boutique” shop, specializing in metallurgical engineering, metallurgy, failure analysis, accident investigation and general engineering.  Cash flow is vital component of my practice.  Experts cannot and should not be expected to finance, for plaintiffs or defendants, the cost of litigation.  I equate the prompt payment of the J.E.I. invoices as clear and concise evidence that the client appreciates my work.

 You’ve heard of “Glamour Don’ts” here’s “Top 10 Attorney Don’ts When It Comes To Your Expert”:

1. Don’t call last minute looking for an expert.

2. Don’t request a budget before the expert even knows what is involved in the case.

3. Don’t limit the expert by allowing only minimal work.

4. Don’t tell the expert how to do the testing.

5. Don’t expect the expert to know what happened without thorough testing.

6. Don’t tell the expert what to find.

7. Don’t forget to pay the expert.

8. Don’t leave the expert in the dark.

9. Don’t ask your expert to bend the truth.

10. Don’t bring a knife to a gunfight…make sure you have the right kind of expert!