Checklist for your first call to a prospective expert witness

By James Fritz, Esq., and Ronald V. Miller, Jr., Esq.

Here are 11 agenda points that counsel can use as a template in addressing the likely anticipated questions of expert witness and consultant candidates. This checklist can help both counsel and expert witness gauge the degree of fit.

1. “Briefly, here is what the case involves....” This is a threshold topic on which the expert needs information to assess whether the subject matter of the case falls within the expert’s area of expertise. If the expert is a nephrologist and the issue involves hematology, this is a tip-off that counsel may need a different kind of expert from a different medical discipline. Depending on the issue to be addressed, the matter may or may not lodge in the expert witness’ sweet spot.

2. “I represent the plaintiff [or the defendant]....” This information can be useful for the prospective expert or consultant to know if he or she is trying to “balance” the practice and representation between plaintiffs and defendants. If the expert can strike a balance, this may lessen the odds of against opposing counsel painting the expert as a biased hired gun.

3. “The opposing party is....” (Any conflict?) You can avoid wasting time if you find out up front if the expert has a conflict, or clear the decks for a possible retention by confirming that you don’t.

4. “The key issue or issues for which I need an expert is (are)....” This is called framing the issue. Unfortunately, I know from years of working and communicating with attorneys that they often do what I call a “data vomit,” spewing facts over the phone. Often, it is easy to lose sight of the forest for all the trees. Yes, the prospective expert needs an overview. At some point, after the wind-up, you need to make the pitch by saying, “Here is the issue on which I may need an opinion, after you review some materials, of course.”

This comment steers the attorney and the prospective witness into a discussion that has an outcome-oriented conclusion. Prospective experts may find that the issue is outside of their realm of expertise. If so, best for counsel to know that now. Maybe the person you call actually knows of another expert who could be a better fit. Alternatively, you might find that the issue is right in the prospective expert’s sweet spot of expertise. If you meander interminably, it may not be clear to the prospective expert what he or she might be needed for. Do not be shy about setting forth the issue, without dictating the outcome or opinion.

5. “The due date for the expert report is....” Before accepting an assignment, the prospective expert will want to find out the deadline. It takes only one case coming in on December 23 with an expert report deadline of January 3 to teach expert witnesses this lesson.

When expert witnesses get together and compare notes, they often complain about the tendency of retaining attorneys to wait until the last minute to engage an expert witness, imposing a crisis and fire drill atmosphere on the expert. The expert witness disclosure deadline and due date for a report may have been known for many months, but the expert is retained with days to spare.

Before agreeing to an engagement or quoting your hourly rate, a seasoned expert will want to determine how close you are to the due date for disclosing experts and for the written report (if any). Experts may adjust their rate structure accordingly and even their willingness to take a case.

6. “The case is in X court or jurisdiction....” Let the prospective witness know whether the case is in state or federal court. This may affect the speed of the docket, the caliber of the judge in the case, and the amount of leeway the expert would have in offering expert opinion.

7. “We are at the following stage of the discovery process....” A good expert will want to know from the hiring attorney the answers to questions such as:

• Have any depositions been taken?
• Have they been completed?
• Has document production been finished? Is it in progress?
• Is there any motion practice?
• Would the expert be coming onto the scene at the beginning, middle, or end-game of the pre-trial process?

8. “This is/is not a rebuttal report….” A good expert will want to learn whether the other side has disclosed its experts. If the expert you have contacted may be asked to provide a rebuttal report, there is already an opposing expert who has weighed in on the issue for which your expert’s view is being sought. There may be situations that present the expert you have contacted with not an outright conflict, but a potentially awkward situation. If the opposing expert is a good friend, business colleague, mentor, etc., of the expert you have approached, the latter may be uncomfortable in opposing them.

Or maybe the opposing expert is a buffoon and your prospective expert relishes a chance to go head-to-head. Best to know up front before having an expert say “Yes” to the engagement and then “No” once they learn the identity of the opposing expert!

9. “A trial date is/is not set. It is....” Knowing this gives the prospective expert a sense of the case’s expected pace and time line. This can be highly relevant, especially if the prospective expert is in a busy phase juggling many engagements. The expert you call may have conflicting trial dates on other cases, or may be scheduled to be at a deposition or attending a conference for which he or she has pre-registered. An imminent trial date may portend, “Fire Drill!” to the prospective expert. A futuristic or unset trial date may suggest that the expert will have ample time to analyze and digest the materials needed without a crisis atmosphere. Some people—and expert witnesses—thrive on crises; others have a hard time functioning effectively in this atmosphere. The proximity of the trial date may suggest the degree of “juggling” the expert may or may not have to do with other assignments and obligations.

10. “Let me tell you how voluminous the materials are that need to be reviewed....” It may matter to prospective experts whether this is 200 pages or six bankers boxes. Again, a good expert will mentally juxtapose the deadline for submitting expert reports with the estimated amount of material to be reviewed. The relationship between these two may impact experts’ interest and ability to take the case, especially if they are stretched thin juggling other commitments. Extensive document review under a tight time frame may impact (a) an expert’s willingness to take the case, (b) the expert’s ability to devote the needed time to it, and (c) the pricing level the expert quotes counsel for the engagement.

11. “It is likely that expert depositions will be taken....” Have dates been set? If not, would the expert’s deposition likely be taken in the next 30 days? 60? 90? This can be handy to know in terms of the expert’s own preparation, especially juxtaposed with the amount of documents or materials the expert may need to review on a given case. A compressed time frame may also impact the expert’s fee structure, based on the idea that rush jobs cost more and merit premium pricing. Let the prospective expert know if the court has entered a scheduling order and, if so, communicate to the expert the deadlines for depositions.