The sooner, the better; slow and steady wins the race; the early bird catches the worm; a stitch in time saves nine. All axioms we’ve heard over and over again. How is it, then, that law firms find themselves rushing to find, select, and vet their own experts all too near the date of ADR or trial. We all would prefer to have as many answers as possible before engaging outside help. This can save time and cost. The hardship presented, though, is that often in fields outside our own we don’t know what it is we don’t know.
Expert witnesses can play a critical role in all phases of legal proceedings. From reviewing for merit before accepting a case, establishing applicable standards, to framing your argument before going into ADR or trial. Expert consultation and testimony can provide the information and insight necessary to make your case. By means of example, there are numerous specialty areas in medicine, the sciences, and nursing where the information and insight available through early expert engagement can only benefit a firm’s position in any case.
Once a case is undertaken, a theory must be developed to define how to best advocate for the client. In matters requiring expert opinion testimony, preparation should be made at this early stage to identify and select appropriate expert witnesses. Once selected, these experts will be positioned to review the attorney’s preliminary theory of the case and refine it to include or, more importantly exclude, evidence and/or testimony that will distract the trier of fact from the central argument that puts the client’s perspective in sharp relief.
When formulating the theory of a case, attorneys ought to ask of themselves “am I qualified to testify as an expert in this case”? If the answer is a resounding yes, then expert selection can be delayed to nearer the mediation or trial date. If, on the other hand, the answer is the more common no, an expert ought to be consulted before the theory of the case is finalized.
In summary, the most important consideration is that where the attorney is not qualified as an expert witness, an expert should be identified and engaged no later than upon acceptance of a case.