Science and Law
10th January 2013

Top 5 Reasons You Need a Scientific Consulting Expert

Every lawyer trying a complex product liability (pharmaceutical, medical device, or consumer product) or toxic tort (chemical exposure) case knows that one of his/her greatest needs is a top-rate testifying expert witness.

Top 5 Reasons You Need a Scientific Consulting Expert

Every lawyer trying a complex product liability (pharmaceutical, medical device, or consumer product) or toxic tort (chemical exposure) case knows that one of his/her greatest needs is a top-rate testifying expert witness. 

Most lawyers instinctively believe that this expert will provide him with all the answers: education for an effective direct examination; tips for a devastating cross; and the winning strategy for the overall case. After all, the individual is an “Expert.”

But there are also limitations to the benefits of even the best testifying expert. The following limitations are some examples:

  • discovery concerns limit unfettered written communication between lawyer and expert
  • many top-notch experts are extremely knowledgeable about their area of expertise, but don’t have the appropriate litigation context
  • any expert worthy of his/her stature has extremely limited time and therefore there are serious constraints in the ability of a lawyer to communicate

The solution (although it isn’t always apparent) is the addition of a seasoned consulting expert.

So, what is a scientific consulting expert? A consulting expert is an individual knowledgeable about the general scientific area of interest, but he or she is often more of a generalist. For example, in a chemical exposure case, you might need a risk-assessment toxicologist with specific expertise in a certain type of cancer to testify. But a seasoned clinical toxicology consulting expert could go a long way in providing useful strategic guidance and advice on the case.

We provide below 5 specific reasons why you might benefit from the addition of a scientific consulting expert to your team:

Reason #1 – Effective Written Communication

Emails and documents to and from testifying experts are scary business to most litigators because they can be taken out of the appropriate context. On the other hand, taking away the ability to communicate in writing at all can be problematic.

Consulting experts offer the litigator a tool to communicate in writing about the scientific aspects of the case without the fear that that the communication will be taken out of the appropriate context. Examples of written communications include the following: analyses of published literature, review and comment on opposing expert reports, review and comment on motions and briefs.

Reason #2 – Perform Novel Analyses

Very often, when cases involve scientific studies (published or unpublished), there comes the desire to perform reanalyses of the data (including causation analysis). The problem with turning to your testifying experts to perform these tasks is that if the analysis turns out to be unhelpful you may not want your expert to testify about it.

Using a consulting expert to perform a reanalysis of data has a number of advantages, including the ability to tweak the analysis in real time as well as the ability to abandon the approach if it turns out to not be helpful. This allows the legal team to explore every avenue that could potentially help the client without being bound to utilize those approaches or have those approaches undergo excess scrutiny in the discovery process.

Reason #3 – Develop a Winning Strategy

Testifying experts are chosen because of their specific subject matter expertise and their ability to persuasively testify about a narrow topic area – an area in which they are a leading expert. However, the best testifying experts often don’t have a sense of the context in which their testimony will be given (i.e., the courtroom).

Scientific consulting experts can help you think about the case from a big picture perspective, including the implications of using different approaches and different strategies. Because these cases are so complex with so much science coming into play (Including Tracking the Science), developing this overall strategy is critical to prevailing in the courtroom (or in settlement). Consulting experts can be invaluable on the road to finding that strategy.

Reason #4 – Time and Availability

Odds are that if a testifying expert is a leader in his or her field, that individual won’t have the time that you need from them. Simply finding time in their busy schedules to agree to a deposition date is often a nightmare — let alone trying to find time for extended strategy sessions and/or general discussions about the case.

Consulting experts are usually not burdened by the same type of time constraints and therefore can be a valuable addition to your testifying expert team.

Reason #5 – Developing the Best Tactics

The tactical aspects of a case involving complex scientific information involve the development of incisive and devastating cross examinations as well as drafting the most persuasive motions and their accompanying affidavits. These activities are dramatically enhanced when you have access to a consulting expert who can step back with you and take a look at the case from a big picture perspective.

Scientific consulting experts excel at helping to implement the strategy that has been decided upon and make sure that there will not be any unforseen problems with the approach selected. Because they have worked on many different types of litigations before, consulting experts can apply learnings and best practices from previous engagements and bring them to the table in your case.

 

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