Never Ask Your Client for an Expert

By Robert Ambrogi Esq
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."

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Robert Ambrogi Esq

We are proud to partner with an author of Bob’s caliber to provide exclusive articles for our legal clients and leading industry experts. Robert J. Ambrogi is a news media veteran and the only person ever to hold the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers Weekly USA. He is currently a Massachusetts lawyer who represents clients at the intersection of law, media and technology. He is also internationally known for his writing and blogging about the Internet and technology. Media and Technology Law Bob represents a range of businesses and individuals, concentrating in print and electronic media companies and the editorial, sales, marketing and technology professionals who work in them. He also counsels businesses and individuals in employment matters. Arbitration and Mediation An established professional in alternative dispute resolution, Bob has been an arbitrator since 1994, focusing on labor and employment and securities disputes. A mediator in a range of civil disputes, Bob completed the training required by Massachusetts law to protect confidentiality.

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