As the dollar value of settlements increases and the margin for error decreases, the importance of presenting convincing expert testimony becomes even more vital to a successful case.
With these pressures, some attorneys have fallen into the unethical practice of scripting an expert’s words. They assist in the preparation of an expert report, coach the expert for deposition and then stick the expert on the stand. However, when the expert isn’t presenting her own views, she can be quickly challenged, impeached and removed as your witness.
If scripting an expert is equivalent to shooting yourself in the foot, the last thing you want to do is hand your hired gun bullets.
Build Your Case Around the Expert
In an interview with Robert Ambrogi, trial attorney Albert L. Jacobs Jr., Partner at Troutman Sanders in New York revealed his thoughts on scripting an expert.
"I want to build the case based on the expert's view of the issues," explains Jacobs. "I have my own ideas about the case, but I'm not hiring an expert to read from a script."
As a patent attorney with more than 35 years of experience, Jacobs understands how much of his case relies on expert testimony. For this reason, Jacobs advocates bringing the expert on board at the earliest possible opportunity.
"If I'm the plaintiff, I want the expert on board before we file suit. I want to work together with the expert and formulate the strongest possible position."
The same holds true when he represents the defendant. "I want the expert on board as quickly as I can. I want to discuss with the expert his or her views on infringement or noninfringement and validity or invalidity."
How Involved is Too Involved?
There is a distinction between coordinating with an expert and scripting an expert. We encourage you to frequently communicate with your expert during the work product stage and help your expert prep for trial. Trying to affect an expert’s opinions, however, is crossing the line.
With changes to Rule 26 of the Federal Rules of Civil Procedure, attorneys have the ability to be more involved in an expert’s work. This presents both dangers and possibilities.
Clifton T. Hutchinson, a litigation partner in the Dallas office of K&L Gates, says the new rule was “misguided” and allows counsel to take a more active role in drafting experts’ reports and crafting their opinions.
“I think we need more, not less, transparency. Some of the important gatekeeping decisions of the past few years only came about because discovery revealed that counsel ‘spoon fed’ the opinions to the expert. … Now such practices will go undetected.”
This post was taken in-part from an article by Robert Ambrogi.
Tell us: What level of involvement in an expert’s work do you believe is acceptable?