The use of experts has a great impact on how and what experts are selected. Management of these professionals involves another skill set, one that combines and shapes the earlier two. To begin with, not every claim is a good fit for an expert witness. The desired use of expert witness services determines the selection of an expert and helps to answer the question whether an expert is needed in the case at all.

There are many available sources of locating experts. A good way to begin is to ask for word-of-mouth referrals based on the personal experience of others. You can contact risk managers, third-party administrators, and other claims handlers familiar with experts who have testified and assisted in claims similar to the one you are handling. These professionals can recommend particular experts and can perhaps also provide you with other sources to pursue.

Tools for Selection

You can talk to lawyers, especially defense counsel, whether or not they have been retained in your particular case. Ask for copies of transcripts of testimony so that you or your manager can evaluate how a given expert can affect the outcome of the case, whenever the case merits that attention.

Another selection tool is to search Westlaw and LexisNexis and similar legal online services. These usually involve subscriber fees. Searching with these and similar services, however, will allow you to obtain access to cases similar to yours in which experts have testified, in addition to accessing expert resumes and CVs filed in past cases, and court opinions quoting or referencing experts' testimony, reports, and opinions.

Legal and claims organizations often provide access to databases concerning particular experts, and some provide access to more generalized categories identifying lists of experts according to the subject matters on which they have testified. Selecting an expert generally requires that from the beginning you narrow your search across the potential field of candidates to those who are qualified to perform the job for which they are going to be retained for use in your case.

Using Expert Witnesses

Experts who have been qualified by courts to present proof on the determination of liability and in determining the cause of a loss, most often include:

Engineers.
Forensic accountants.
Fire loss investigators.

Experts who have been qualified by courts to provide opinion testimony in cases involving even more specialized disputed issues of liability, include:

Forensic architects.
Marine surveyors.
Hydrogeologists/enviromental geologists.

Experts have also been qualified by Courts to provide opinion testimony on damages. These may include:

CPAs.
Makers of inventories.
Specialized physicians and other medical care providers.

Whether they are retained principally to express opinions concerning liability or damages, experts can be used to testify in both areas, of course. Courts have allowed expert testimony on the standard of care governing liability in a given case; whether the party's or parties' conduct conformed to a code, act or statute; and whether a fire was intentionally set.

Establishing Cause and Origin: A Case Example

Here is a case that illustrates the qualification standards followed by many courts in evaluating whether they will permit expert testimony to be admitted into evidence. In a case in which a fire loss was at issue, two experts investigated the fire scene. They examined the cause and origin of the fire in detail. However, neither one took account of personal motivation for anyone to be involved in any way in arson.

Regardless, they both were allowed to testify that the fire was set intentionally. To begin with, the court found that the experts were properly qualified by knowledge, skill, experience, training, and education to testify to the origin of a fire. The court in that case further based its ruling of admissibility on the ground that the expert testimony was relevant and rested on a reliable foundation, because in their investigation as to whether the fire was set intentionally, they looked at and eliminated every possible accidental cause of the fire at issue in that case.

With all that has been said so far, it may seem that Experts are people who are retained to convince Judges and Juries of conclusions favorable to your position in the case. While that is true in a certain sense, it is not true for everything that may come up in your case. It is prudent to recall that no expert who was ever retained in any case was qualified as an expert on everything. This does not mean that there are no experts who will try to talk about everything, however. It has been said that in America in 2013 we are practically all required to have opinions about every conceivable subject. That may be as may be, but as yet it has not found a place in a courtroom. Maximizing chances of admissibility of expert testimony is often a product of how you manage your expert.

Managing Expert Witnesses

Many jurisdictions in the United States, including the federal courts, follow a so-called “gatekeeper” model for the admission of expert opinion testimony. Under this model, whenever trial judges face the question of admissibility of expert opinion testimony, he or she is required to consult certain factors. These factors are appropriate considerations in cases involving potential expert opinion testimony on scientific and technical subjects, and they involve such things as whether the proposed expert testimony is capable of being tested, whether it has been subjected to peer review and publication, what is the known rate of error, and whether the proposed opinion testimony has been generally accepted in the relevant scientific or technical community.

The courts have also held, however, that this particular model does not preclude experts from testifying on other subjects appropriate for expert opinion testimony in the given case. Experts have been qualified to provide opinion testimony based on their work experience, their research experience and capabilities, and her or his personal knowledge and training. Even courts following the “gatekeeper” model for determining the admissibility of expert opinion testimony, allow such testimony after favorably examining whether:

1. The proposed expert is “properly qualified.”

2. The expert's proposed testimony is “reliable.”

3. The testimony is a good “fit” with the facts of the case, meaning there is a demonstrated connection between the results of the particular expert's study or focus, and the identified issue or issues of fact which are in dispute in the given case.

Appropriately managing an expert witness involves managing the documents that are provided to the expert for review. Courts have held that expert testimony founded on excerpts of depositions, what one court has called “spoon-fed depositions,” is simply not reliable and should be ignored accordingly.

Admissible Testimony

Courts have similarly held, particularly in cases involving complicated issues of liability or damages or both, that experts who have reviewed or who have been provided with deposition testimony after they reached their opinions in the case, will not be allowed to testify because the proposed expert testimony is based on insufficient facts or data, contrary to the rules of evidence which apply to that case.

Experts should also be capable of writing reports which may be required by the applicable rules of court, and of providing affidavits on particular issues containing otherwise admissible testimony in that court or jurisdiction. An illustration of how to present admissible expert opinion testimony by affidavit comes from a case in which a court held that a particular expert's affidavit was properly “disregarded.” In that case, the expert gave free reign in an affidavit to “broad and dramatic language without substance or analysis,” in the eyes of the court. The expert's affidavit did not set forth facts and in failing to do so, failed also to outline a line of reasoning arising from a logical foundation, which the Court required in order to find the expert's opinion testimony admissible. In other words, the expert's affidavit may have been entertaining, but otherwise it offered nothing of value to that case.

There is another bright-line rule in managing the potential substantive testimony of expert witnesses: No expert, even lawyers—and perhaps particularly lawyers—will properly be allowed to testify to legal conclusions. Experts are permitted to testify to their opinions concerning whether particular conduct in a given case meets an applicable standard of conduct. However, conclusions of law are strictly the judge's job.

To illustrate how this can work, take the example of an attorney malpractice case in which a lawyer was allowed to testify as an expert on behalf of the lawyer who was a defendant. The expert testified to his opinion concerning whether the defendant lawyer should have filed a counterclaim for bad faith against the client's fire insurer, as a part of the prior defense of the underlying fire loss case. The lawyer-expert was of the opinion there was no such bad-faith claim to pursue in that case, and so the defendant lawyer acted in accordance with standards prevailing in the local community in this regard, in the expert's opinion.

The opposing party objected that the lawyer-expert was not qualified because the proffered expert lacked sufficient experience in defending fire loss cases. This was not a bar in the eyes of the court in this case. The expert was allowed to testify to his opinion because the expert had two decades of experience as a defense lawyer retained by insurance companies to defend them against claims by policyholders and for that reason he was qualified to present his opinion on the subject of whether there was not any reasonable basis for a bad faith claim against the fire insurer.

Finally, the proper management of expert witnesses necessarily includes a sophisticated handling of their fees. The fact of a retainer up front, and the amount of the expert's reasonable fees, are all questions which are resolved by a variety of facts peculiar to your claim. These determinative facts include:

Whether the expert is in a field or has background experience with you or your company, or with counsel such as to affect the expert's decision to require a retainer and, if so, in what amount.
Fees generally charged by Experts in the same geographical locale and field of expertise.
The jurisdiction in which the case is pending, if the claim is in suit.
The terms and conditions of the expert's retention agreement, if any (and there will usually be one).

In conclusion, the selection, use and management of expert witnesses and their testimony involves overlapping skill sets. Deciding how you will maximize your chances to successfully use experts has a great effect on how you select them. Management of such witnesses combines and expands on the first two skill sets for efficient use of the experts you select for your particular case.

Dennis J. Wall is an Expert Witness, attorney, author, and consultant on the subjects of insurance coverage and insurer bad faith. He has over 34 years of insurance practice and can be reached at 407.699.1060; DJW@dennisjwall.com.

Special Reports /

The Expert Witness: Selecting and Managing A Vital Resource

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