by Sterling Anthony, CPP, expert witness, packaging, warnings, patent infringement, cargo loading & securement, insurance claims
- Engage the packaging expert as early as feasible. Any veteran expert can recount instances of being contacted by an attorney who’s under a time crunch, practically needing an expert yesterday. Whatever the reasons behind the delay, opportunities have been lost. There’s a shorter time for the vetting process, especially with multiple candidates. Even if the attorney has a particular candidate in mind, that candidate might not be available, worse if the unavailability is due to having been retained by an opposing attorney. It shouldn’t be just about finding an expert who can perform under tight timing; for, whatever the performance, it arguably could be better, given more time.
For Plaintiff attorneys and Defense attorneys, alike, being proactive pays dividends, especially for a Plaintiff attorney who’s not sure of the merits of a contemplated case. Before filing the Complaint, with Discovery being scant, it’s likely that it’ll only require a few hours of an expert’s time to provide an opinion. If the expert performs impressively, and regardless of the opinion rendered, the attorney will be left with either of two favorable options: file and retain the expert; or, not file but remember the expert for future cases.
- Set ground rules for the expert. Since every attorney has a preferred way of working with experts, those preferences should be made known from the onset. Attorney and expert comprise a working relationship; however, it’s not one of equals. The expert is not the advocate, and, therefore, should defer (within ethical limits) to the attorney’s ways of working a case. That’s not to suggest that the attorney needs to be a micromanager; nonetheless, it’s prudent not to leave certain issues to assumption.
An issue that illustrates that fact is work-product, more specifically, what is and isn’t discoverable. The attorney’s position on note-taking by an expert is an example. Whatever the position, does it extend to the annotating of deposition transcripts? Does the attorney take different positions depending on whether the case is federal or state? Does the attorney take different positions depending on whether the expert has been retained to only consult or to also testify? No expert wants to compromise whatever privacy privileges that attach to work-product, but necessary to such avoidance is that the attorney establishes ground rules.
- Address problems with the expert immediately. No problem should be considered too small to address, although the response should be commensurate with the size of the problem. Not to do so is to implicitly endorse the problem, thereby increasing the probability of repeat or exacerbation.
While acknowledging that a problem can originate from either party, the following example addresses one from the perspective of the attorney: taking issue with——or, at least needing further explanation about—— an expert’s invoice. The expert should be able to explain and justify every item of the invoice, ideally with documentation to the attorney’s satisfaction. A problem (and it’s a big one) that never should arise is billing for work that has not been authorized; for, that’s an indication of an out-of-control expert.
- Don’t choke the expert with purse strings. An attorney owes cost-effectiveness to the client; however, it would be a contradiction to that maxim to prevent the expert from performing necessary work, simply for purposes of expenses. If, for example, a site inspection by the expert is advisable or if it’s advisable that the expert see, handle, examine, etc., an exemplar, the attorney should authorize such activities. The alternative is to jeopardize the expert’s credibility. That’s a handicap that won’t escape the notice of an experienced opposing counsel, particularly if the expert’s expertise is central, for example, a packaging expert in a case alleging an unreasonably dangerous product due to defective packaging.
Frugality need not be discarded, though. Flying coach, moderate lodging, and modest dining are common-sense practices to which no expert should object. The expert can further contribute by arriving with a well-conceived agenda that is carried out with dispatch, saving time and money.
- Challenge the expert’s creativity. Attorney and expert are experienced in the type of case that brought them together. Whereas the upside is self-evident, the downside can be underappreciated. The more times something is repeated, the greater the chance that the thing will be done by rote. If it ain’t broke don’t fix it. A better philosophy: If it ain’t broke, improve it. The case objectives never change: prove or disprove the allegations to a preponderance of the evidence; however, success in the pursuit of the objectives can hinge on creativity.
The expert should approach the case from multiple perspectives, constantly searching for something overlooked, something hiding in plain sight that can be utilized for a competitive advantage. An expert can endorse the attorney’s theories without being just a sounding board or a programed agent. The expert performs a valuable service by getting an attorney to rethink assumptions. An expert should demonstrate self-initiative regarding creativity, but the attorney should make it known from the onset that creativity by the expert is expected.
- Involve the expert in case strategy. Valuable experts serve not only in a tactical role but also in a strategic one. For discovery, an expert can inform on the necessity of certain evidence, enabling the attorney to acquire it through requests for admission, requests for production, or interrogatories, whichever is appropriate. Using as an example the aforementioned case involving an unreasonably dangerous product due to defective packaging, the attorney who unilaterally decides on what evidence is pertinent, might not know to request a particular specification, or perhaps certain quality assurance records.
As for the other discovery tool, depositions, collaboration between attorney and expert should extend beyond the former’s preparation of the latter. An expert always should be consulted about the questions to be asked of the opposing expert. On a related note, attorneys know the wisdom in supplying experts with all pertinent deposition transcripts; however, there’s more to it than informing the expert on who said what. The attorney and expert should have phone discussions to exchange takeaways on the various deponents. Perhaps the expert has noted a technical error or some other verbal miscue by a deponent that can be utilized for strategic advantage.
- Express gratitude to the expert as deserved. Well accustomed to working with experts, attorneys are not easily impressed; therefore, an attorney should acknowledge exceptional service. An expert should be committed to excellence, regardless, and when it’s delivered, recognition can be a powerful motivator and reinforcement.
Lastly, when an attorney has need for a particular type of expert and immediately thinks of a candidate based on prior collaboration, time is saved, time that can be devoted to other aspects of trying the case. That, in itself, is worth the occasional verbal pat on the back.
Sterling Anthony, CPP, is a consultant to the industrial, institutional, and government sectors and an expert to the legal community. He is a former manager at Fortune 100 companies and a former instructor at two major universities. His contact information is: 100 Renaissance Center-Box 43176, Detroit, MI 48243; (office) 313-531-1875; (cell) 313-623-0522; (fax) 313-531-1972; thepackagingexpertwitness@gmail; www.thepackagingexpertwitness.com