The use of experts has a great impact on how and what expertsare selected. Management of these professionals involvesanother skill set, one that combines and shapes the earliertwo. To begin with, not every claim is a good fit for an expertwitness. The desired use of expert witness services determinesthe selection of an expert and helps to answer the question whetheran expert is needed in the case at all.

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

Tools for Selection

You can talk to lawyers, especially defense counsel, whether ornot they have been retained in your particular case. Ask for copiesof transcripts of testimony so that you or your manager canevaluate 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 andsimilar legal online services. These usually involve subscriberfees. Searching with these and similar services, however, willallow you to obtain access to cases similar to yours in whichexperts have testified, in addition to accessing expert resumes andCVs filed in past cases, and court opinions quoting or referencingexperts' testimony, reports, and opinions.

Legal and claims organizations often provide access to databasesconcerning particular experts, and some provide access to moregeneralized categories identifying lists of experts according tothe subject matters on which they have testified. Selecting anexpert generally requires that from the beginning you narrow yoursearch across the potential field of candidates to those who arequalified to perform the job for which they are going to beretained for use in your case.

Using Expert Witnesses

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

• Engineers.
• Forensic accountants.
• Fire loss investigators.

Experts who have been qualified by courts to provide opiniontestimony in cases involving even more specialized disputed issuesof liability, include:

• Forensic architects.
• Marine surveyors.
• Hydrogeologists/enviromental geologists.

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

• CPAs.
• Makers of inventories.
• Specialized physicians and other medical careproviders.

Whether they are retained principally to express opinionsconcerning liability or damages, experts can be used totestify in both areas, of course. Courts have allowedexpert testimony on the standard of care governing liability in agiven case; whether the party's or parties' conduct conformed to acode, act or statute; and whether a fire was intentionally set.

Establishing Cause and Origin: A CaseExample

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

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

With all that has been said so far, it may seem that Experts arepeople who are retained to convince Judges and Juries ofconclusions favorable to your position in the case. While that istrue in a certain sense, it is not true for everythingthat may come up in your case. It is prudent to recall thatno expert who was ever retained in any case was qualified as anexpert on everything. This does not mean that there are noexperts who will try to talk about everything, however. Ithas been said that in America in 2013 we are practically allrequired to have opinions about every conceivable subject. That maybe as may be, but as yet it has not found a place in a courtroom.Maximizing chances of admissibility of expert testimony is often aproduct of how you manage yourexpert.

Managing Expert Witnesses

Many jurisdictions in the United States, including the federalcourts, follow a so-called “gatekeeper” model for the admission ofexpert opinion testimony. Under this model, whenever trial judgesface the question of admissibility of expert opinion testimony, heor she is required to consult certain factors. These factors areappropriate considerations in cases involving potential expertopinion testimony on scientific and technical subjects, and theyinvolve such things as whether the proposed expert testimony iscapable of being tested, whether it has been subjected to peerreview and publication, what is the known rate of error, andwhether the proposed opinion testimony has been generally acceptedin the relevant scientific or technical community.

The courts have also held, however, that this particular modeldoes not preclude experts from testifying on other subjectsappropriate for expert opinion testimony in the given case. Expertshave been qualified to provide opinion testimony based on theirwork experience, their research experience and capabilities, andher or his personal knowledge and training. Even courts followingthe “gatekeeper” model for determining the admissibility of expertopinion testimony, allow such testimony after favorably examiningwhether:

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 ofthe particular expert's study or focus, and the identified issue orissues of fact which are in dispute in the given case.

Appropriately managing an expert witness involves managing thedocuments that are provided to the expert for review. Courts haveheld that expert testimony founded on excerpts of depositions, whatone court has called “spoon-fed depositions,” is simply notreliable and should be ignored accordingly.

Admissible Testimony

Courts have similarly held, particularly in cases involvingcomplicated issues of liability or damages or both, that expertswho have reviewed or who have been provided with depositiontestimony after they reached their opinions in the case,will not be allowed to testify because the proposed experttestimony is based on insufficient facts or data, contrary to therules of evidence which apply to that case.

Experts should also be capable of writing reports which may berequired by the applicable rules of court, and of providingaffidavits on particular issues containing otherwise admissibletestimony in that court or jurisdiction. An illustration of how topresent admissible expert opinion testimony by affidavit comes froma case in which a court held that a particular expert's affidavitwas properly “disregarded.” In that case, the expert gave freereign in an affidavit to “broad and dramatic language withoutsubstance or analysis,” in the eyes of the court. The expert'saffidavit did not set forth facts and in failing to do so, failedalso to outline a line of reasoning arising from a logicalfoundation, which the Court required in order to find the expert'sopinion testimony admissible. In other words, the expert'saffidavit may have been entertaining, but otherwise it offerednothing of value to that case.

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

To illustrate how this can work, take the example of an attorneymalpractice case in which a lawyer was allowed to testify as anexpert on behalf of the lawyer who was a defendant. The experttestified to his opinion concerning whether the defendant lawyershould have filed a counterclaim for bad faith against the client'sfire insurer, as a part of the prior defense of the underlying fireloss case. The lawyer-expert was of the opinion there was no suchbad-faith claim to pursue in that case, and so the defendant lawyeracted in accordance with standards prevailing in the localcommunity in this regard, in the expert's opinion.

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

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

• Whether the expert is in a field or has background experiencewith you or your company, or with counsel such as to affect theexpert's decision to require a retainer and, if so, in whatamount.
• Fees generally charged by Experts in the same geographicallocale and field of expertise.
• The jurisdiction in which the case is pending, if the claim isin 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 expertwitnesses and their testimony involves overlapping skill sets.Deciding how you will maximize your chances to successfullyuse experts has a great effect on how you selectthem. Management of such witnesses combines and expands onthe first two skill sets for efficient use of the experts youselect for your particular case.

Dennis J. Wall is an Expert Witness, attorney, author, andconsultant on the subjects of insurance coverage and insurer badfaith. He has over 34 years of insurance practice and can bereached at 407.699.1060;[email protected].