Decades ago, the use of experts in litigation was reserved for the most complicated and technical cases. Before the issuance of enhanced evidentiary rules in the mid-1990’s, practically anyone having some knowledge about a particular topic could offer opinion testimony without a court intervening to any great degree. Not surprisingly, those days are long gone, and the “testifying expert” has become a mainstay in almost all areas of the law.
With that increased expert activity, however, comes increased demands and expectations. Once upon a time, attorneys would simply hire an expert and rely upon that expert to marshal the case to its end. Now, attorneys are beginning to question the content and sufficiency of their own expert’s methodology and opinions. Evidentiary challenges brought under evidentiary rules, or under the Daubert line of cases, are now considered the norm, rather than the exception.
There are a number of concerns for the testifying expert which stem from this development. First, the time billed by an expert to any particular file will justifiably increase. Experts must now spend more time drafting their reports, educating the hiring attorneys, and preparing for deposition and trial, to ensure that every “T” is crossed and every “i” is dotted. Providing an “off the cuff” or “limited” opinion is a one-way street to expert preclusion, and clients must be advised at the outset of a case of the potential increased cost of such increased activity.
Second, the potential for expert preclusion, and the negative professional, financial, and reputational consequences for the expert stemming from preclusion, is present in every case. Justified or not, experts are hired with the presumption that the expert is qualified in the field at issue, and with the presumption that opinions offered will be relevant and based upon a reliable methodology – namely, that the expert will be allowed to testify.
The key to experts avoiding unfortunate circumstances is adhering to whatever “best practices” are endorsed by the industry in question. If those “best practices” are followed, then any post-preclusion or post-adverse verdict claims by the hiring attorney will carry less weight.
Experts must also keep in mind that their professional well-being is generally not foremost in the minds of the attorney handling the case. Rather, the attorney deals with litigation issues, and some attorneys do not understand or appreciate the impact an evidentiary challenge has on an expert’s professional reputation, economic interest, or long-term credibility in the industry. Testifying experts should give serious consideration to employing a number of “safeguards” to protect their own interests.
Those safeguards may include comprehensive Retention Agreements which set forth the rights and obligations of both the expert and the client, including the right of the expert to participate in their own “defense” to an evidentiary challenge or to retain their own counsel to represent the expert’s interests in the event of an evidentiary challenge. Any expert who undertakes a new assignment without a contract does so at great risk to their professional standing.
Third, experts must be cognizant of the potential liability claims they may face in the event of preclusion or an adverse verdict. Theories regarding experts’ liability are limited only by the creativity of trial lawyers, and whether a direct action against an expert will be ultimately successful may not even be part of the equation. The goal may simply be to get the expert to accept a reduced fee rather than defend their expert activities in a direct liability action which could take years.
The world of litigation is constantly evolving, and one of the most noticeable changes in the last decade has been the enhanced role of the expert witness. Experts seeking to take on the “testifying expert” mantle are welcome to do so, but they should do so with a clear understanding of the need to protect their own professional and financial interests.