It has happened before – a case is pushing up against discovery deadlines and counsel realizes that an expert witness and report will likely be necessary. While experienced experts can usually expedite an analysis, it is almost always more advantageous to engage the expert as soon as possible.
Consulting experts can be vital in assisting counsel in developing the strategy and theme of the case. Expert advice may even be preparatory to determining if litigation should even be pursued or if seeking prompt settlement is more advisable; financial experts may be able to estimate the range of potential economic damages without regard to who may ultimately prevail. This allows counsel to add independently derived perspective(s) to his or her estimation of the outcome.
In addition to assisting counsel as to the potential value of a case, experts can provide valuable guidance on how to frame certain aspects of the case. While counsel is well aware of the legal standards and burdens that must be met or rebutted, financial experts can assist counsel in identifying and understanding vital financial, accounting and economic aspects of the case. A more thorough understanding of these components at the inception of a case can not only assist counsel in drafting a complaint or responsive pleading, but in setting and maintaining a cogent and consistent theme. Without such a framework, counsel may take preliminary positions that conflict with foundational aspects of the expert’s eventual report and/or testimony.
Often, an expert is retained during the latter part of the discovery process, or even worse, after certain aspects of discovery have closed. This approach disadvantages counsel. An expert can often help counsel tailor document requests, interrogatories and even deposition questions to information that will likely be critical to a clear understanding of the case but sufficiently narrow to be useful; no one wants to search through thousands of pages produced under an “all documents” type request when a pointed request could have yielded the specific document(s) needed to evaluate different aspects of a case or, more critically, fail to request important information before discovery closes.
Additionally, if an expert is more involved in the discovery process, the expert will be in a position to assist counsel in determining whether, when (and for how much) a settlement should be pursued.
Effective Use of Time and Resource Management
When retained at the “last minute,” the expert is often in a rush to complete his or her analysis. Given more time, an expert has the opportunity to more effectively and efficiently manage the process, by comprehensively delving into the discovery with a focus on overall case issues and by fully utilizing the resources at his or her disposal. For example, if given more time, it is typically easier for the expert to delegate many tasks to staff with lower billing rates, thereby actually decreasing the costs.
More Persuasive as Witness at Deposition and Trial
Often cases that make it to trial hinge on the testimony of the parties’ respective experts. In this so-called “battle of the experts,” an expert who is more familiar with the case will likely be perceived by the trier of fact as more knowledgeable, and, therefore, more reliable. This broad understanding of the facts and history of the case is more likely to be achieved by early involvement of the expert. Perhaps more importantly, if an expert has not had the opportunity to be exposed to large aspects of the case, deposition or trial testimony could potentially include more questions than answers.
Considering the important role that an expert’s report or testimony is likely to play in a particular matter, serious consideration should be given as early as possible as to whether and when an expert should be retained. Often, the expert’s findings and testimony are the linchpin to counsel’s winning strategy, providing vital support to keep the wheels from falling off. Let us know if your next case requires a financial or forensic accounting expert witness.