Every lawyer knows the importance of finding the perfect testifying expert in complex litigation, such as toxic torts, product liability, or patent disputes. Your testifying expert is the star of the case. You retain him or her to be the face of your case to the court.
Every lawyer knows the importance of finding the perfect testifying expert in complex litigation, such as toxic torts, product liability, or patent disputes. Your testifying expert is the star of the case. You retain him or her to be the face of your case to the court. This testifying expert must be knowledgeable, credible, persuasive, and personable. Indeed, that perfect testifier can make all the difference and the critical nature of that role cannot be overemphasized.
However, a role that often gets overlooked is that of the Consulting Expert, an expert who can help guide the strategy of the case and help to uncover areas of potential concern and weakness. Rather than having a deep, narrow area of expertise, the Consulting Expert often has a broad, wide area of expertise and a lot of hands-on experience dealing with controversies.
Quite often litigators feel that they can rely on their testifying experts as consultants and that they do not need a separate consulting expert. However, to achieve a successful outcome in litigation, we have found that it is critical for the litigator to communicate strategically and to consider avenues that he may not wish to highlight for his testifier. In addition, testifying experts often do not have the availability that a good consulting expert is willing to offer. For these reasons, retaining an effective Consulting Expert is critical.
In the sections below, we review the following 5 things that a good Consulting Expert can help you do at different stages of your case: define the case; identify the best testifiers; vet your testifying team; prepare your experts for killer testimony; and create persuasive demonstrative exhibits.
Define the Case
In the early stages of a case, a good consulting expert will actively participate in early case assessment, define key technical arguments, help define rebuttal arguments, and help you see the overall strengths and weaknesses of your case. He will help you wrap your brain around difficult aspects of your case – aspects of the case that a lawyer is often not trained to understand. Consulting experts can help you identify the topics and the approach you should take that will help you prevail. In short, you need consulting experts to help you figure out what you don’t know you don’t know.
If you are representing a plaintiff – for example in a patent dispute – the first step of the process occurs before the complaint is filed. You will want to identify your consulting expert to help you build the over-arching strategy for the case and have them help you identify your testifying experts. For a defendant, you will do those things soon after the complaint is filed.
Identify the Best Testifyiers
Once you have a good sense of the nature of the scientific or technical case, you will be in a much better position of identifying and vetting your testifying experts. And your Consulting Expert can play a critical role in this phase.
The first step in identifying the right experts is developing a strategic map of the type of experts that you will need for the case. Clearly, the type of experts will be a function of the type of testimony that you will need them to make based on the specifics of the case. Engaging the right consulting expert in the early stages is critical in developing this map. This consulting expert will also help you create a master plan for your expert testimony. Having a strategic sense of what you would like your expert team to say before you even engage that team is critical to understanding what types of experts you will need and how to find them.
You will very quickly develop a sense of some broad categories of experts you should be looking for. For example, if the case involves allegations that a chemical is causing diabetes, you will need an endocrinologist who studies the etiology of diabetes. Your consulting expert will assist you in determining the appropriate categories of testifying experts to recruit for you case and thereby help you find the right testifying experts for various roles in the case. Once you know what types of experts you are looking for, you will have an easier time finding the best and the most qualified experts for your case.
Vet Your Testifying Team
Once you have a short list of candidates that you are considering as your testifying trial team, you need to vet them. One aspect of the vetting process will be to scour their publication record, which will include a review of their published papers, public presentations, prior testimony, and even blog postings. Because your Consulting Expert brings scientific and technical expertise to the table, he or she can be an invaluable resource to deploy for the vetting of the written and oral record. The Consulting Expert will bring scientific and technical arguments to your attention that you may not have considered as posing a problem in the case.
You will also be scheduling in person meetings with your candidates to make a final decision about each individual’s pros and cons as testifiers. During these meetings, you will explore the candidate’s regional appeal, testimony track record, their general demeanor, and ability to stay focused. This is also an excellent place for your consulting expert to provide critical input, whether he or she is actually at the meetings. Your Consulting Expert can guide your vetting decisions and work with you to determine who should ultimately make the final cut.
Prepare Your Expert for Killer Testimony
As you work with your expert for his deposition and/or testimony, you will be thinking about the different types of arguments that can be made by opposing counsel. For example, if you are confronting a causation argument, you should evaluate whether your opposing experts will be testifying that the exposure is capable of causing the injury under any conditions or just some conditions? Your Consulting Expert can help you to consider the waterfront of possibilities and thereby help you to prepare your testifiers for their cross examination and to prepare more robust expert reports.
Create Persuasive Demonstrative Exhibits
Finally, as you approach trial and deposition, you will be thinking about your demonstrative exhibits. This is an area where you will be working very closely with your testifying experts. However, do not underestimate the value of your Consulting Experts in assisting with the construction of these demonstratives. A Consulting Expert can help you step back from the totality of the evidence and develop exhibits that will speak more clearly to a judge or jury on a big picture level.
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