Most aggrieved parties run to their lawyers when they feel that they have been wronged to seek the process of making a claim under the law as well as the process of the law.
While much is to be said about retaining the right lawyers to process your claims, equally important but less understood is the role of the expert witnesses that may be required under the proffering of your position.
Unless your claim is one under strict law which you should be able to argue for the equivalent of summary judgment, meaning that there is no arguable issues of fact for the Court to consider and that the Court should be able to grant you judgment simply under the law, then you should assume that you are going to require the services of an expert witness.
It’s the function of the expert witness to tell the Court (Judge or Jury) the platform that should be used to determine the issues at hand. The Court will determine the application of the law, but not the application of the facts and levels of expertise that should be assumed.
The foundation of this party is to serve as the “expert” person of knowledge whose opinion and testimony should be considered and taken as a given. Generally, this person will have a resume to support the expertise behind their testimony and any expert report that is provided to the Court. They will have the confidence of the Court and at least one of the parties involved in the litigation.
Cases involving litigation are usually complex and require significant amounts of analysis and comprehension by the experts. A good expert is not one that generally relies on what the lawyers say. A good expert is usually one that tells the lawyers what the conclusions are. It’s then up to the lawyers to build the platform of the case around the analysis of the expert witness.
Many cases will come down to what is called the “battle of the experts” because that is exactly what the case is about. Not only does your expert witness have to play the position on your behalf, but this expert has to defend and make themselves subject to examination on behalf of their position as well as appear for examination at trial. The expert not only has to be accurate, but must know how to “sell” or “proffer” your position against grueling cross-examination by the other-sides lawyer who will be prepared by a counter expert. The counter expert only has one function; destroy the credibility of your expert witness.
Make sure that you find your experts early in the process, but not too early where sufficient discovery has not been received to provide the expert the substantive information required in order to make their determinations.
You need an expert that is sure of himself in regard to the information and data, but also an expert that is fully onboard with the strategy that your legal team is pursing.
In many cases your legal team will skimp when it comes to experts. Many times the expert report and testimony is refused by the Court or the party is deemed not an expert witness at all. While this may not be the death of a case in front of a Judge, it very well may become the death of a case when put in front of a Jury. The Jury may perceive such refusal to admit your expert as a rejection of your entire platform. Therefore, be as diligent in regard to your expert witness as you are in selecting your lawyers.
Do not engage an expert that can be bullied by your lawyer. In fact, it’s wise to do the opposite. Hire an expert that can bully your lawyer as this will keep your lawyer on his toes. Many lawyers do not realize or give significant credence to the importance of an expert witness and may wait to longer to get an expert engaged. The time lag in many cases will cost you, your case, or negotiating position, as the other side has a right to take the deposition of your expert. If you wait too long to retain your expert, you may miss the dates to supply the expert report and deposition to the other side.
Don’t get caught in this trap. Make sure that you hire the right witness with the right expertise. For instance, our expertise is complex business transactions, financial litigation, securities litigation, and business contracts. It is imperative to hire the person that can carefully dissect the information relevant to your matter.
More importantly, hire an expert that “owns” the information and can explain or “sell” it to the Jury or Court without being flabbergasted by opposing Counsel or losing their cool under cross examination from opposing Counsel. It’s important to remember that the mission of opposing Counsel is to have your expert dismissed along with the “evidence” that was to be delivered in his report.
The Lawyers load the guns, but the Expert Witness holds the bullets.
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