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Working with Experts Part I
Introduction
I have had the privilege, for the past
40 years, of consulting with some of the most competent, skilled, thorough, and yes,
humble litigators in this country. Many of you, whom I have known and have worked with for years, are reading this article, and I want to thank you “for the memories” and past associations. At the
other extreme, we find “the others.” I would guess that these are probably the attorneys that are the source of so many “attorney jokes.” I will probably direct my thoughts to the two extremes so
that everyone might benefit.
For a number of years each Sunday morning, about 7am, Lambchop and I treked down to the church building to fix coffee (about 150 cups) for those who will arrive for
Bible Study starting around 8:15 am. If I were to ask for comments and suggestions from that group of people, I would undoubtedly hear, “coffee’s too strong/weak/wrong brand of
coffee/sugar/sweetener/cream/creamer/ cups/stirrers/table cloth, etc. So I don’t ask!
However, you, the readers of this article are different. I am asking, and do covet your suggestions, remembrances and criticisms regarding this
article. I have provided an opportunity for you to send me comments at the end of this article. Comments will not be published, nor the writer identified without permission. My comments and opinions
expressed in this article are to be taken with a grain/teaspoon or cup of salt, as you deem necessary.
On Board Early
When I think of “On Board Early,” my thoughts go back to my wife, Jann (pictured below) and me traveling by train in Europe. Train travel in Europe is much like a judge's scheduling order. The
trains leave precisely on the minute and they don’t wait for those stuck in traffic, those who can’t get their luggage closed, or those who don’t have the right ticket, etc. When we first started using trains in Europe, we would arrive at the last minute, running for and hopping on the last train car as it left the station, hoping we were going to the right destination (that is certainly another funny story.) On one occasion, (and this is not a funny story) Jann was getting on and the door shut on her arm as they started moving the train (her hand and forearm were inside and the rest of her was outside!) After a few missed trains and close calls, we learned “if you want a pleasant and enjoyable trip,
be early.” We also learned being early permitted us the luxury of inventorying our belongings (luggage, etc.), and “really enjoying the ride.” I also remember when we paid thousands of dollars for a trip on the “Orient Express.” We were plenty early and enjoyed all the benefits!
Likewise, put your expert on board EARLY. Don’t wait until literally “the last minute.” How many times have I heard, “Dr.
Jerner, I need your help; these are the facts; can you help me; I have to designate an expert today or tomorrow!” Attorneys who wait until “the last minute” are shortchanging themselves and their clients
by not utilizing an expert’s years of experience.
In the past
40 years, I have given over 275 depositions in Product Liability litigation. Attorneys who do not hire me and/or an experienced
expert early in the litigation largely cut themselves off from the benefits of that experience. Some, but certainly not all of the advantages of getting your expert “on board early” are:
1. Early examination of evidence might confirm (or deny) that viable litigation exists.
In the recent past, a plaintiff attorney client sent me evidence concerning an accident which happened about two years prior.
His expert report deadline was rapidly approaching. After a
preliminary visual examination and limited laboratory testing, I called and posed several important questions for the attorney to ask his client, and also suggested the possibility of an additional defendant.
Several weeks later, the attorney called back with word to stop my investigation. He had found that his client had “lied to him” and the facts
he/we thought to be true were not. I suspect that numerous hours
of the attorneys valuable time and considerable resources had been spent needlessly pursuing a “dog that wouldn’t hunt” for maybe as long as two years!
2. Experienced experts can assist with early discovery, document production, specifications, requirements and other revealing
critical technical documents needed. Also, other possible parties, etc.
In another recent matter, I was sent an initial stack of documents and production. A brief review indicated numerous important technical items had
not been produced because they had not been requested. Production deadlines had passed; some important depositions had been taken. Luckily a few depositions, through which the critical documents could be obtained, were
yet to be scheduled.
In another recent matter I was sent volumes of
discovery documents and the opposing expert's very
strong and competently prepared report. After
receiving the documents, a series of additional
questions were suggested to the client attorney. He
drafted a set of interrogations and after a few
months, I received a phone call indicating that the
plaintiff company had dismissed their case. We will
never know, but evidently the interrogatory
questions prompted some serious discussion
concerning the source of a failed shaft and the
answers suggested "that dog won't hunt!"
3. Being “early on board” allows the experienced expert to suggest other areas of expertise that might be of assistance and/or
required. Experts with years of experience often have knowledge of other competent experts with whom they have worked and whom they would recommend.
Frequently, I find that I would prefer, “if the loss justifies the cost,” to bring on a mechanical, chemical, civil, etc. engineer, chemist,
finite element expert and/or fracture mechanist, to name a few. Experts, that respect each other and work well together, tend to be synergetic. A team approach, again, “if the loss justifies the
cost,” allows the attorney more latitude with respect to designating which experts are to be testifying and which are to be merely consultants. Likewise, all testing laboratories are not equal. Each has
strengths in certain areas and weaknesses in others. Many dollars can be wasted by testing at the wrong laboratory. An experienced expert will be able to suggest the best labs at which proper testing can
be conducted .
NEXT: Working With Experts Part II
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Dr.
R. Craig Jerner, Ph.D., PE specializes in accident
investigation and metallurgical failure analysis,
with over 30 years experience as a metallurgical
consultant and accident investigator. He has
testified as a metallurgical expert in over 250
depositions and more than 70 court appearances. If you or someone you know should need the services of Dr. Jerner and J.E.I. Metallurgical, please visit our web site at the buttons below, or e-mail Dr. Jerner --- 