MAXIMIZING THE VALUE OF YOUR EXPERTS DURING LITIGATION
Now that you have determined you have a good case and have built a solid foundation through extensive pre-suit investigation including consultation with your expert(s), you are ready to file your case. For plaintiffs, to maximize the value of your case, make good use of written discovery and thoroughly explore all relevant testimony through the use of depositions. Experts can help you hone in on the issues on which you need to focus in your discovery.
Discovery
There is only so much evidence you can put together yourself, or with the assistance of your client and/or experts. At some point, you’re going to have to find out what evidence your opponent has in his or her possession. Effective use of written discovery and depositions will help you further buttress your case, as well as to clarify any weak points. “Smoking guns” usually do not exist or are not found in litigation. However, when they are, they’re usually found in the possession of your opponent. The more effective your use of discovery, the more likely you are to find your smoking gun.
Use of Experts in Written Discovery
Many attorneys simply serve form interrogatories and requests for production in every case. Do not fall into this trap. It is fine to develop a template. For example, you will always want to ask for insurance information if you represent a plaintiff. Make such a request part of your template. However, be sure to think about what you really want and need to develop your case. Tailor your interrogatories and requests accordingly. If you represent the plaintiff, serve the interrogatories and requests with the complaint. It is important to exert pressure at the earliest stage. Further, the sooner you send your discovery, the sooner you will have the information. The sooner you have the information, the sooner you may want to proceed with depositions, and so on and so forth.
Experts may assist in this regard, especially in technical cases. There may be a piece of information or a specific document that your expert may be looking for. If you do not know what they want, or are not yet intimately familiar with all the technical aspects of your case, then you risk failing to ask for necessary information and documents in your written discovery.
Use of Experts in Depositions
There is a widely varied approach among lawyers when it comes to taking depositions. It is likely that every civil litigation attorney in North Carolina will acknowledge that certain depositions are important to the development of a case. Some states follow the federal approach and require an expert report which obviates the need for the time and expense of taking an expert deposition. This author would enthusiastically welcome such a system in North Carolina. But we must play the hand we are dealt.
This presenter prefers a hybrid approach when it comes to deposing opposing experts. Too often, opposing counsel uses the depositions as an audition. The expert gets comfortable with the questions to be asked at trial. Opposing counsel gets to see how their expert performs at their dress rehearsal. As such, I prefer to take a bare bones approach to expert depositions. Investigate background information, as well as prior lawsuits, complaints, arrests, etc. Ask the experts’ opinions and their bases. But avoid getting into a debate about the facts. Save it for trial. While I understand that many civil practice attorneys get nervous at the prospect of asking a question when they do not know what answer to expect, the fact of the matter is that criminal lawyers encounter this every day. There is a way to craft questions when only one answer – the one that you want – will be your answer. It takes skill and creativity. And when you are dealing with experts who charge hundreds of dollars an hour, the economics are obvious.
Call on your experts to help you prepare for the depositions of your opponent’s experts and any other parties or witnesses where you may cover subject matter in your expert’s field. Ask your expert, “if you were in my shoes, what would you want to ask their expert/witness in deposition?” Or, “what do I need to watch for in this deposition?”
Prior to your expert’s deposition, make sure you prepare them. Focus on weak points in the case and how they should be approached. In terms of the location for the deposition, make sure you select a location convenient for your expert. Convenience is key for experts. After the deposition, see to it that your expert is paid promptly. Follow similar principles for trial. In addition to the normal preparation of your experts, offer to book their flights if they are from out of town. Arrange for a car to pick them up and return them to the airport. Make their hotel reservations. A happy expert often makes for a better expert. Better experts help obtain better results. Further, if an expert performs well for you in one case and you develop a good relationship, you may be able to call on them for help in future cases.
Use Focus Groups to Maximize Your Expert’s Effectiveness
Conducting focus groups can be critical to preparation for both trial and settlement. One benefit of focus groups is that the information gleaned can help maximize the effectiveness of your experts’ testimony. Theories that seemed so important to you and your expert, may not be given much consideration by the focus group. Armed with this knowledge, you will have an opportunity to tailor your expert’s examination accordingly. For example, if your expert identified 3 breaches in the standard of care in a medical malpractice case, but the focus groups key in on the third breach identified, you may consider expanding your direct examination to concentrate more on that particular breach. If the focus group raises significant concerns about contributory negligence in a trucking matter, you may have your expert address that issue more aggressively. A better understanding of the strengths and weaknesses of your case will increase your confidence and preparation as you approach mediation and trial.
Use of Experts at Mediation
North Carolina has employed mandatory mediation for several years with good success. The importance of preparing a presentation for mediation can not be overstated. This is true whether you represent the plaintiff or the defendant. Some cynical attorneys would just as soon dispense with the “dog and pony show” and cut right to the discussion about the numbers. Unless you are sure that the defendant is going to offer $0, or that the plaintiff will not settle for a penny less than an unreasonable sum of money that you are not even close to willing to pay, then you should proceed with an effective presentation.
A good presentation serves another valuable purpose. Namely, it makes for good trial preparation. It forces you to sit down, review the entire file, and determine what evidence you want to put on. It forces you to think about how you want to present evidence at trial. Consequently, by the time you prepare for mediation, you will have a leg up on the trial preparation and will enter mediation from a position of strength. Your preparedness communicates to the other side that you are ready to try that case today if necessary. It’s also one less thing to worry about during trial preparation.
In addition to use of testimony and exhibits, expert witnesses may be used to great effect under the right circumstances. For example, it may be helpful to have your medical expert or, better yet, an attending physician available at mediation. However, this may be akin to finding a unicorn these days.  We have brought pediatric neurologists to the mediation to thoroughly explain plaintiff’s injuries and the consequences to plaintiff. We have even had these doctors conduct a physical examination in the presence of the defendants and their insurers to demonstrate the magnitude of the injuries. This is particularly impressive in the case of brain-damaged babies or quadriplegic or paraplegic plaintiffs. Even more impressive than a “Day in the Life” film is a demonstration, such as stretching exercises of a quadriplegic patient performed daily to prevent strictures or watching a nurse insert a PEG tube for feeding a brain-damaged child.
Regardless of the type of catastrophic injury case you have, consider bringing a critical expert to mediation to ensure that your theory of the case is effectively presented.
My next blog post will discuss how to effectively use your experts at trial.
