Science and Law
24th August 2015

Finding the Ideal Expert in Complex Scientific Litigation – An Ongoing Process to Win your Case

Clearly there are a host of factors relevant to achieving a favorable outcome in complex scientific litigation, including product liability and toxic tort cases. Yet after more than 20 years of working with counsel, we are convinced that finding the ideal expert for your case may be the single most important activity relevant to prevailing in a legal challenge.

Finding the Ideal Expert in Complex Scientific Litigation – An Ongoing Process to Win your Case

Clearly there are a host of factors relevant to achieving a favorable outcome in complex scientific litigation, including product liability and toxic tort cases. Yet after more than 20 years of working with counsel, we are convinced that finding the ideal expert for your case may be the single most important activity relevant to prevailing in a legal challenge. The right experts often play a significant role in conveying key messages to a jury and providing the backbone to developing a winning argument.

We have discussed in previous blog posts that if your legal matter involves complex scientific concepts, recruiting the right expert is critical. An expert who can effectively communicate technical information to the judge and jury will lend credibility to your central arguments and offset damaging misinformation from your opposition. Our recent experience with class actions, environmental, intellectual property, product liability suits and other forms of litigation involving complex scientific issues has bolstered our conviction that finding the right experts continues to be as important as ever but it is not a onetime exercise. Some of the most successful legal teams are constantly looking for ideal candidates to supplement their cadre of experts or to be ready to replace currently engaged experts.

Here are two critical reasons you may be forced to replace your experts.

Ongoing litigation Wears Down Experts

Even in mature litigations, where the field of experts has been established for some time (e.g., asbestos, silica, automotive, etc.), we find counsel reevaluating their experts and their expert teams. There is clearly a significant benefit of using experts that are familiar with the case and who are familiar with the processes of providing testimony. In other words, these established and experienced experts have become expert not only with the technical and scientific content relevant to the case but also with procedures for writing expert reports, being deposed and preparing for trial testimony. Despite these advantages, however, thoughtful attorneys are looking carefully at their expert “team” and considering alternative candidates to develop for future cases.

In some instances it has become necessary to recruit brand new individual experts or even a brand new expert team because the “usual suspects” have become over-exposed in certain jurisdictions. Or perhaps opposing counsel has discovered vulnerabilities in their scientific arguments. Or an expert has developed too large a compensation history for their services.

One line of questioning that can take its toll involves an interrogation about the number of years the expert has worked for a particular defendant or defendant’s counsel and to questions about the total compensation received by the expert from a given defendant. These factors can have a negative impact on the credibility and effectiveness of the experienced testifier.

Emerging Science and Technology Requires Cutting Edge Expertise

As we see in the news every day, scientific and technological advancements emerge at a dizzying pace. New theories being tested and a constant evolution of knowledge and scientific facts. This newly emerging science can have a dramatic impact on the science relevant to litigation. Whether it be in economics, engineering, chemistry or in the life sciences, thought leaders in their field are even more challenged to examine old ideas once thought to be state-of-the-art. This also holds true for litigators dealing with complex issues in litigation.

Based on this ever-changing landscape, it is imperative that counsel contemplate retention of a new breed of experts that may be more ideally suited to testify under current circumstances. In the interest of ensuring that the legal team has the ideal cadre of testifying and non-testifying experts – and that it is in the best position to prevail – counsel should be engaged in an ongoing effort to identify the most credible, knowledgeable and effective experts.

In the course of our work with counsel over the last 25 years, we have noticed a trend towards renewed appreciation for the desire to identify and develop the most credible and effective expert for high stakes litigation. There is also a trend toward re-evaluating existing expert teams to insure that the legal team is aware of vulnerabilities and that they adapt to a changing landscape of scientific information.

Don’t let junk science corrupt the facts in your case. Download our eBook, The Litigators Guide to Combating Junk Science – 2nd Edition. Simply fill out the form below.

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Clearly there are a host of factors relevant to achieving a favorable outcome in complex scientific litigation, including product liability and toxic tort cases. Yet after more than 20 years of working with counsel, we are convinced that finding the ideal expert for your case may be the single most important activity relevant to prevailing in a legal challenge. The right experts often play a significant role in conveying key messages to a jury and providing the backbone to developing a winning argument[HD1] .


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