1. Selecting "The Right" Testifying Expert and Best Practices for Getting the Most Out of Your Expert During the Pretrial Phase of the Litigation ABA Section of Litigation — April 10, 2014
Brian R. Booker, Esq.
Quarles & Brady LLP
Phoenix
Sonya Kwon
Navigant Consulting
Los Angeles
Edward M. McDonough
Alvarez & Marsal
Suzanne L. Montgomery
AT&T Services, Inc.
Dallas

2. TOPICS: Selecting an Expert Expert Qualifications Due Diligence
In-House Counsel Perspective
Experienced vs. Inexperienced Witnesses
Considering Multiple Experts
Preparing and Developing the Expert Opinion
Documents and Data
Causation Opinions
Damage Theories
Expert Reports
Use of Experts in Addition to Trial Testimony
Common Uses
Discovery and Depositions
Mediation
Arbitration

3. Determine the expert’s qualifications:
I. Selecting an expert
Determine appropriate professional discipline (e.g., accountant, economist, real estate appraiser, engineer, medical expert, etc.)
Determine the expert’s qualifications:
Skills
Knowledge
Education
Credentials
Training
Experience
Professional Experience
Testifying Experience
Communication Skills
Style
Competitive Concerns

4. I. Selecting an expert - CONTINUED
Due Diligence Regarding Expert’s Background:
Find out ahead of time:
Prior Excluded testimony
Bias/Plaintiff-Defendant
Prior testimony on similar matters
Have you worked with/against opposing counsel/firm/party in the past
Publications/Speeches
Social Media
Firm Website
Contact prior attorneys who worked with/against the expert:
Reputation
Responsiveness
Persuasive communication
Strength/weakness
Communication/testimony style

5. I. Selecting an expert - CONTINUED
In-House Expert:
Advantages for selecting in-house expert from client:
Intimate factual knowledge of the subject matter
Lived through the issue, and less of a learning curve to overcome
More knowledgeable about the bigger pictures issues impacting the business
Sensitive to the potential impact of the testimony on the client’s business operations or other pending litigation
Disadvantages to client as expert witness:
Bias or motive – loyalty to employer
Possible financial interest in the lawsuit (salary/bonus)
Unlikely to have the same academic credentials as a retained expert
May consider having both in-house expert and independent expert

6. I. Selecting an expert - CONTINUED
Experienced Witness:
Brings a range of prior experience which may be valuable
Understands the process
Sensitive to the pitfalls of discovery
May have developed persuasive methods to explain complex technical facts to a jury
Aware of the sense of urgency needed to respond to the unpredictable demands of litigation
Should be more cost effective
Inexperienced Witness:
Shorter track record of prior testimony provides less ammunition for cross-examination
May mitigate the appearance of a “hired gun”

7. ii. PREPARING AND DEVELOPING THE EXPERT OPINION Documents and data
Complaint and Response
Price Lists
Counterclaim
Customer Lists
Contracts and Agreements
Sales Invoices
Financial Statements
Sales Commission Reports
Management Reports
Marketing Materials
Business Plans
Customer Surveys
Budgets and Variance Analyses
Market and Industry Data
Minutes of Board Meetings
Margin Analysis
Correspondence
Engineering Studies
Depositions
Alternate Product Designs

8. ii. Preparing and developing the expert opinion – continued
Causation Opinions
Establish the connection (or lack thereof) between the cause of the action and the damage suffered – Loss may be attributable in whole or in part to some other cause than the defendant’s actions.
Sufficient facts or data
Product of reliable principal and methods
Principal and methods reliably applied
Causation versus correlation
Can a financial expert establish causation?
Plaintiff’s theory of the defendants’ wrongful conduct
How the plaintiff alleges the defendant’s wrongful conduct caused damage
How the defendant alleges it did not cause the plaintiff’s damages
Whether the plaintiff’s damages could reasonably be expected to have flowed from the defendant’s wrongful conduct
Other factors that may have caused or exacerbated the plaintiff’s damages

9. ii. Preparing and developing the expert opinion – continued
Damage Theories
Quantify damages
Permanent vs. Temporary Loss
Lost profits
Lost value
Actual But For Damage vs. Consequential Damage
Expectation Damages
Reliance Damages
Rescission/Restitution
Punitive Damages
Generally Accepted Damage Methods
Rebut opposing damage calculations – Identify weaknesses, errors, and flaws in the methodology utilized by opposing experts.

10. Iii. Expert reportS Which experts are required to provide report?
“Specially retained”
What about in-house experts?
Detail/Stands on its own
State court disclosure vs. Federal court
Tells Story
Supported by documents/deposition testimony
Consistent with facts/deposition testimony
Reasonable/common sense
Damage models based upon generally accepted methodologies (reference)
Generally accepted methodologies
Referenced to recognized sources
Counsel should read report in full
2010 Amendments to FRCP 26
Role of in-house counsel

11. iV. Use of Experts in addition to Trial Testimony
Expert witnesses can provide assistance beyond their expert testimony, including:
Providing insight into industry/business issues
Identifying sources of financial information
Helping in development of interrogatories and interpreting answers
Investigating damage assessments
Identifying strengths and weaknesses of the case
Analyzing causation
Identifying individuals to depose
Preparing deposition questions
Assisting in mediation and other settlement negotiations
Supporting dispositive motions
Preparing exhibits and demonstrative evidence
Non-testifying expert can consult with counsel, including in-house expert
Competent expert witnesses are critical to complicated cases. Even if a case doesn’t go to trial, a credible expert can assist in evaluating the case and settling the case for your client.

12. ii. Use of Experts in addition to Trial Testimony – continued Mediation
Alternative Damage Calculations
“What If” Analysis
Defend Approach
Attend Mediation

13. ii. Use of Experts in addition to Trial Testimony – continued Arbitration
Expert Testimony
Rebuttal Testimony
Consulting
Different Rules for Discovery

14. Top 20 List FOR DEPOSITION
Read their report beforehand
Review their workpapers
Have your expert read report and provide comment
Find areas of agreement with your expert
Find areas of disagreement
Do your homework on their area of expertise (standards, etc.)
Have your expert attend deposition
Ask short questions
Understand assumptions and facts used
Ask them what their opinions are early on
Listen to their answers
Be humble
Do not argue
Do not cut them off
Understand documents relied on
Do not tip your hand
Ask intelligent questions
Do not wing it
Forget the hypothetical unless….
Do not ask open-ended questions on cross