by Robert Ambrogi - Editor
BullsEye Newsletter: January 2007
When
IP lawyer John P. Hutchins needs a referral to an expert witness,
there is one source he always avoids – clients –
and another he solicits only warily – law partners. A
misguided referral from either one, he has learned, puts the
relationship at risk and may send his expert search back to
square one.
"Never let your client pick the expert," Hutchins,
a partner with Atlanta law firm Troutman Sanders, advises other
lawyers. "They don't understand what is required. Don't
even ask them for recommendations."
Hutchins learned this lesson early in his career while representing
a client who collected vintage automobiles. Because the client
was a premier collector who was immersed in the field, Hutchins
sought his help in finding an expert. The client delivered.
It was not until much later in the case that Hutchins discovered
that his client and the expert had a significant financial relationship,
tainting the expert's credibility.
As for seeking the advice of law partners, Hutchins urges caution.
The partner may not fully understand your requirements. More
to the point, an off-target referral may threaten your professional
relationship. "If your partner recommends an expert and
it doesn't work out, there may be bad feelings afterwards,"
he says.
One way around that is to assemble a slate of potential experts
based on the recommendations of several partners and then investigate
and interview each one. "I would never take just one recommendation
from a single partner and do no due diligence."
Preserving professional relationships is a major reason Hutchins
prefers to use an outside referral service such as IMS Expert
Services, he says. "If I end up not choosing someone they
send me, my relationship is intact. I've not lost anything."
Seeking Outside Referrals
An IP lawyer with a focus on technology and transactional litigation,
Hutchins uses experts in a broad variety of cases. Because many
of his cases involve software performance and copyrights, he
has developed the knowledge and resources to find experts for
these cases on his own. The same is true for damages experts.
He typically turns to an outside referral source, he says, "when
I have a particularly unusual need." One example was a
case in which Hutchins defended a telecommunications provider
against a claim of commissions due under a cooperative-marketing
agreement.
The case required an expert with in-depth and specific knowledge
of marketing practices within the industry. This was a matter
outside Hutchins' area of concentration, so he turned to IMS
for a referral. "IMS found a superb expert for me,"
he reports. "He had all the right kinds of experience and
really understood the case and was able to explain the industry
protocols."
Whenever he seeks outside referrals for experts, Hutchins hopes
to gather at least three or four candidates who fit the profile.
He then interviews each – always in person so that he
can judge demeanor and credibility. "Some people come off
well on the telephone, but they might not play as well in front
of a judge or jury," he says. "Early in my career,
I learned the importance of face-to-face contact with folks
who will be live witnesses at trial."
It is important in litigation, Hutchins believes, to anticipate
the experts you will need and line them up as early as possible.
When he represents plaintiffs, he tries to have his experts
in place before filing the lawsuit. Retaining the expert early
also means getting the expert engaged in the case early.
Hutchins solidifies his theory of the case as much as possible
before he begins meeting with an expert. "I like to tell
my expert my theory of the case the first time we have a conversation.
I don't want my theory to change significantly after I consult
with the expert, but I do let it remain flexible enough to fit
what the expert considers important facts."
That does not mean the lawyer has to know precisely what the
expert will say. Hutchins recalls the marketing case in which
he turned to IMS for help finding an expert. "I knew something
about the other side's case didn't pass the smell test. I had
a good sense that an expert who understood this form of marketing
would poke holes in it."
On the other hand, lawyers often make the mistake of searching
for an expert without a clear idea of what they want the expert
to say. "You need to have a good idea of what testimony
you want from your expert. In my cases, it is two or three key
points at most."
One piece of advice Hutchins considers "huge" in working
with testifying experts is to treat everything you say to the
expert as discoverable. "Lawyers make a mistake when they
rely on work-product protection when they talk to an expert.
It is hard for the expert to separate what information he uses
to form his opinion and what he rejects. I treat every conversation
with my testifying expert as non-privileged."
Experience as a witness is not a critical characteristic for
an expert, Hutchins believes. He does, however, look for something
that tells him the expert will be comfortable talking in front
of the courtroom.
"I like experts who are good teachers. Their job is to
be the juror's guide, to teach them about something they're
not familiar with."
IMS
Expert Services is the premier expert witness and
litigation consultant search firm in the legal industry. IMS
Expert Services is focused exclusively on providing custom
expert witness search services to attorneys. We are proud to
be the choice of 91 of the AmLaw Top 100. Call us at 877-838-8464
or visit us at www.ims-expertservices.com.
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