Effective Use of Experts: The Rules of Engagement

Expert testimony 'can be both powerful and quite misleading' because of a jury's difficulty in evaluating such evidence. ' Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993).

Expert testimony is an integral part of products liability litigation. As the excerpt above articulates, expert testimony is powerful and its importance should not be underestimated or trivialized. Selecting an expert who can simplify the issues for the fact-finder, yet maintain his or her composure under cross-examination, is a difficult and time-consuming process. In short, because your expert's credibility is critical to the success of your case, you need to understand the rules of engagement at the outset.

Further, understanding the discovery and evidentiary pitfalls, as well as the expert disclosure requirements under the Federal Rules of Civil Procedure (FRCP), will greatly assist you in your initial evaluation of when and how to use an expert, and how you ought to communicate with your expert. As a practical matter, using your expert effectively will assist you in posturing your case for settlement or trial, and reduce mistakes, thus saving you and your client time and money.

This article outlines when you must use an expert in your products case, when you should consider using an expert, and how to select and retain the right expert. Additionally, it addresses common issues involving experts, and sets forth practice tips to increase the likelihood of a positive experience with your expert.

To Retain Or Not To Retain?

Initial Evaluation. At the outset of your case, you should carefully evaluate the facts and relevant law to determine the areas or specialties that lend themselves to expert testimony. Early preparation and investigation will help prevent or reduce headaches later in litigation. For example, many times evidence is available for a very brief period after an incident. Retaining and having your expert investigate early, allows the expert to obtain firsthand knowledge of the product and scene of the incident. Otherwise, the expert must rely on information, documents, or photographs prepared by others, which then leaves your expert vulnerable to a variety of cross-examination questions on foundation issues.

As explained in more detail below, in some instances, expert testimony is not only helpful, but also is required under the applicable substantive law. If you fail to invest the time at the beginning of the case, you may lose a precious advantage (the other side may retain a sought-after expert before you) or even risk malpractice.

Is Expert Testimony Required?

The admissibility of expert testimony in federal court is governed by Federal Rule of Evidence (FRE) 702 and Daubert principles. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167 (1999)(holding FRE 702 and the Daubert analysis apply not only to expert testimony based on “scientific knowledge,” but also expert testimony based on “technical” or “other specialized” knowledge). Rule 702 does not specify when expert testimony is required. Instead, Rule 702 sets forth prerequisites as to when an expert's opinions may be admitted into evidence. As a consequence, judicial precedent, state substantive law, and, in part, FRE 702 considerations determine when expert testimony is required.

One authority indicates that federal courts may require expert testimony when the issues are so complex as not to be within the knowledge of the average juror. Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, '702.04[1] (Joseph McLaughlin, ed., Mathew Bender 2d. Ed. 1997). Indeed, under certain substantive law (such as professional malpractice claims) courts require expert testimony before the claim reaches the jury. Therefore, the critical inquiry concerns whether the cause of action presents complex issues outside the knowledge of the average juror.

If Not Required, Should You Retain an Expert?

Consultant Expert. Experts can be an integral part of your case preparation, regardless of whether the expert will testify at trial. With a particularly complex case, because of the nature of the injuries or the factual or legal issues presented, a lawyer should consider retaining an expert as a consultant. Parties are not required to identify experts retained as consultants, and consultant experts are typically used to assist you in evaluating and analyzing the factual basis of the case and/or the value of the case. The consultant expert should prove a valuable resource in gathering facts, preparing for witness depositions, or even preparing you to depose or cross-examine the other side's expert. If you later decide that an expert is needed, you can then identify the consultant expert as a testifying expert.

Testifying Expert. In contrast to the consultant expert, the testifying expert must be identified to opposing counsel in order to give opposing counsel time to depose the expert and possibly retain an expert of his or her own. If an expert is identified as a testifying expert, be prepared to comply with the applicable discovery rules. Federal court has strict disclosure and discovery requirements for testifying experts. Additionally, in federal court, the expert will be subject to the stringent Daubert analysis.

Factors to Consider in Determining Whether to Retain an Expert:

• Whether an expert is required;
• Whether the proposed testimony is relevant and admissible;
• The nature and extent of the damages or injuries claimed;
• Whether the other side has retained an expert;
• Whether you can elicit favorable testimony from the other side's expert;
• Whether the testimony will simplify important issues for the jury;
• Ultimate goal of the case ' trial, mediation, settlement.

PRACTICE CONSIDERATION. Understanding the substantive law early in the case is imperative. The ability to identify whether an expert is required, the type of expert, and perhaps the qualifications of the expert, is helpful in order to determine whether a case should be removed to federal court, if possible, and subject to its standards for expert testimony and Daubert principles. Further, the FRCP imposes additional discovery requirements than those generally seen in state rules.

Basic Principles for Using Experts

Selecting the Expert. Once you have decided to retain an expert, here are some general considerations to help in your search to find the right one.

• Will you need an expert to address several issues or will you need multiple experts to address single issues?;
• The expert should be able to simplify the issues and educate the jury;
• The expert should be credible and persuasive;
• Do you prefer an expert that has several resources readily at hand or do you prefer an expert who is not perceived as a “hired gun”? (Big Shop vs. Small Shop);
• Consider whether a “hired gun” is the better choice because he or she has significant experience and understands his or her role in the litigation;
• The expert should have exceptional qualifications in a particular area;
• Before choosing, review authored publications for potential experts;
• An interview helps to evaluate whether the expert has time for you and your case;
• Don't neglect background research ' call references to determine strengths and weaknesses;
• Ascertain the expert's bias. Does the expert testify for one side only?;
• Will the area about which the expert is going to testify be admissible?;
• Ask other lawyers whether they have used experts in similar cases.

Where to Find Experts.

• Colleagues or other counsel;
• Other experts;
• Online research;
• Colleges or universities;
• Hospitals;
• Professional Associations ' Defense Research Institute; American Trial Lawyers Association, etc.

Discovery. As most, if not all, jurisdictions have specific discovery requirements for experts, the authors encourage the reader to review the jurisdiction's local rules for other applicable expert discovery requirements.

Expert Reports. The FRCP contains detailed provisions regarding expert witness disclosures. The term “expert” as used in Rule 26 refers to those persons who will testify under Rule 702 of the FRE with respect to scientific, technical and other specialized matters. See FRCP 26 advisory committee's note. Specifically, FRCP 26(a)(2) creates two separate types of expert disclosures: 1) subdivision 26(a)(2)(A) requires disclosure of any person who may be used at trial to present expert testimony under FRE 702, 703 or 705; and 2) subdivision 26(a)(2)(B) requires those witnesses who are retained or specially employed to provide expert testimony in a case or whose duties as an employee of the party regularly involve giving expert testimony. The latter type must prepare a comprehensive written report. The critical inquiry of whether an expert must prepare written reports under FRCP 26(a)(2)(B) turns on whether the judge considers the expert as being retained or specially employed to provide expert testimony. This is important insofar as many companies in products cases have employees who regularly testify on their behalf and, therefore, would be subject to the written report requirements under Rule 26(a)(2)(B).

The advisory committee notes to Rule 26 are instructive on when expert reports are required. For example, the written report requirements of subdivision 26(a)(2)(B) do not apply to independent doctors. The 1970 amendment to Rule 26 set forth the “new” provision concerning discovery of experts retained in connection with litigation. [FRCP 26(b)(4), Trial Preparation: Experts, distinguishes between testifying experts and consulting experts for purposes of discovery (ie, allows for the discovery of facts and opinions from testifying experts)]. The committee pointed out that subdivision 26(b)(4) “does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit.” See FRCP 26 advisory committee's note. Under such circumstances, the expert should be treated as an ordinary witness. Id.

Further, the advisory committee's notes to the 1993 amendments provide additional insight as to the scope of the written report requirements under 26(a)(2)(B). As the committee's notes confirm, subdivision 26(a)(2)(B) applies only to experts that a party retains or specially employs to provide expert testimony under Rules 702, 703, and 705 of the FRE or whose duties as an employee of the party regularly involve giving such expert testimony. This commentary suggests that other experts who are not in this category need not prepare a written report in accordance with 26(a)(2)(B).

The most common “hybrid” fact/ expert witness is the treating physician. The commentary to Rule 26 refers specifically to treating physicians as experts who can be deposed or called to testify at trial without any requirement of a written report. See FRCP 26 advisory committee's note. While the treating physician is considered an “expert,” the physician need not prepare an expert report if the physician did not acquire or develop his or her knowledge in anticipation of litigation or for trial, and if his or her testimony is based on personal knowledge. Brown v. Best Foods, 169 F.R.D. 385, 387 (M.D. Ala. 1996). In other words, a doctor is not an “expert” for written report purposes, if his or her testimony is based on observations during the course of treatment. Id. Moreover, merely paying a fee to attend a deposition or to testify at trial does not make a treating physician a specially retained or employed expert so as to require the preparation of an expert written report. Hall v. Sykes, 164 F.R.D. 46 (E.D. Va. 1995). This analysis should hold true for any “hybrid” witness with expertise in an area of scientific, technical or specialized knowledge that would be helpful to the fact-finder. Sullivan v. Glock, Inc., 175 F.R.D. 497, 500, n. 5, 506 (D. MD. 1997).

If your expert is subject to the written report requirements, the disclosure requires the expert to produce a report in compliance with FRCP 26(a)(2)(B). The report must contain:

• the expert's signature;
• a complete statement of all opinions to be expressed and the bases and reasons for them;
• the data or other information considered by the expert in forming the opinions;
• the qualifications of the expert, including a list of all publications authored within the preceding 10 years;
• the compensation to be paid for the opinion and testimony; and
• a list of all other cases where the witness has testified as an expert at trial or by deposition within the preceding 4 years.

Other Considerations

Deadline. Expert testimony must be disclosed by the date set by the court in its case management order, and at least 90 days before trial. FRCP 26(a)(2)(C). For rebuttal testimony, the party must disclose the testimony within 30 days of disclosure of the other party's witness. Id.

Daubert Challenge. In many jurisdictions, a party making a Daubert challenge must file the motion no later than the date that the proposed pretrial order is to be submitted. Otherwise, such objections will be waived, unless expressly authorized by court order based upon a showing that the failure to comply was justified.

Discovery. For testifying experts, assume all documents, including drafts and correspondence, in the expert's file are discoverable. See, Trigon Insurance Co. v. United States, No. CIV. 3:00CV365, 2001 WL 1456388 (E.D. Va. Nov. 9, 2001).

Documents and Information. Anything disclosed to a testifying expert in connection with his or her testimony is discoverable by the opposing party, whether or not the expert relies on the documents and information in preparation of his or her report. In Re: Tri-State Outdoor Media Group, Inc. v. Official Comm. Of Unsecured Creditors, 283 B.R. 358, 364 (M.D. Ga. 2002), quoting In re Pioneer Hi-Bred Int'l, Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001).

Protected Documents. Documents that would otherwise be protected by the attorney-client privilege or work product doctrine are discoverable. In Re: Tri-State Outdoor Media Group, Inc. v. Official Comm. Of Unsecured Creditors, 283 B.R. 358, 364 (M.D. Ga. 2002); FRCP 26 Advisory Committee's Note to 1993 Amendment.

PRACTICE CONSIDERATION. Be sure to communicate how you would like the expert to communicate with you. It may be important that the expert not draft anything until after he or she verbally discusses his opinions and conclusions with you, and not put anything in writing until after such discussion.

Preparation. When preparing for your expert's deposition, make sure:

• You have sufficient time for thorough preparation;
• The expert grasps good and bad facts – discuss damaging facts or testimony;
• The expert understands the purpose of expert testimony;
• You grill the expert before the deposition;
• You review the expert's file beforehand;
• There are no surprises, please!

Litigation Costs. At the outset of engagement, reach an agreement with your expert on costs and billing. Usually, an expert has an hourly fee for reviewing records, preparing for depositions, and attending depositions. There may be a different fee for travel time and trial testimony.

Conclusion

Using experts in your products liability case is fraught with discovery and evidentiary hazards. Understanding these rules of engagement will greatly assist you in retaining and using the expert. Moreover, understanding the discovery and disclosure requirements at the outset will help you prepare for and anticipate expert discovery. Finally, a working knowledge of the issues outlined in this article will help you find the expert who can best assist you in reaching your objective in litigation.

Expert testimony 'can be both powerful and quite misleading' because of a jury's difficulty in evaluating such evidence. ' Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993).

Expert testimony is an integral part of products liability litigation. As the excerpt above articulates, expert testimony is powerful and its importance should not be underestimated or trivialized. Selecting an expert who can simplify the issues for the fact-finder, yet maintain his or her composure under cross-examination, is a difficult and time-consuming process. In short, because your expert's credibility is critical to the success of your case, you need to understand the rules of engagement at the outset.

Further, understanding the discovery and evidentiary pitfalls, as well as the expert disclosure requirements under the Federal Rules of Civil Procedure (FRCP), will greatly assist you in your initial evaluation of when and how to use an expert, and how you ought to communicate with your expert. As a practical matter, using your expert effectively will assist you in posturing your case for settlement or trial, and reduce mistakes, thus saving you and your client time and money.

This article outlines when you must use an expert in your products case, when you should consider using an expert, and how to select and retain the right expert. Additionally, it addresses common issues involving experts, and sets forth practice tips to increase the likelihood of a positive experience with your expert.

To Retain Or Not To Retain?

Initial Evaluation. At the outset of your case, you should carefully evaluate the facts and relevant law to determine the areas or specialties that lend themselves to expert testimony. Early preparation and investigation will help prevent or reduce headaches later in litigation. For example, many times evidence is available for a very brief period after an incident. Retaining and having your expert investigate early, allows the expert to obtain firsthand knowledge of the product and scene of the incident. Otherwise, the expert must rely on information, documents, or photographs prepared by others, which then leaves your expert vulnerable to a variety of cross-examination questions on foundation issues.

As explained in more detail below, in some instances, expert testimony is not only helpful, but also is required under the applicable substantive law. If you fail to invest the time at the beginning of the case, you may lose a precious advantage (the other side may retain a sought-after expert before you) or even risk malpractice.

Is Expert Testimony Required?

The admissibility of expert testimony in federal court is governed by Federal Rule of Evidence (FRE) 702 and Daubert principles. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993); Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 119 S. Ct. 1167 (1999)(holding FRE 702 and the Daubert analysis apply not only to expert testimony based on “scientific knowledge,” but also expert testimony based on “technical” or “other specialized” knowledge). Rule 702 does not specify when expert testimony is required. Instead, Rule 702 sets forth prerequisites as to when an expert's opinions may be admitted into evidence. As a consequence, judicial precedent, state substantive law, and, in part, FRE 702 considerations determine when expert testimony is required.

One authority indicates that federal courts may require expert testimony when the issues are so complex as not to be within the knowledge of the average juror. Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, '702.04[1] (Joseph McLaughlin, ed., Mathew Bender 2d. Ed. 1997). Indeed, under certain substantive law (such as professional malpractice claims) courts require expert testimony before the claim reaches the jury. Therefore, the critical inquiry concerns whether the cause of action presents complex issues outside the knowledge of the average juror.

If Not Required, Should You Retain an Expert?

Consultant Expert. Experts can be an integral part of your case preparation, regardless of whether the expert will testify at trial. With a particularly complex case, because of the nature of the injuries or the factual or legal issues presented, a lawyer should consider retaining an expert as a consultant. Parties are not required to identify experts retained as consultants, and consultant experts are typically used to assist you in evaluating and analyzing the factual basis of the case and/or the value of the case. The consultant expert should prove a valuable resource in gathering facts, preparing for witness depositions, or even preparing you to depose or cross-examine the other side's expert. If you later decide that an expert is needed, you can then identify the consultant expert as a testifying expert.

Testifying Expert. In contrast to the consultant expert, the testifying expert must be identified to opposing counsel in order to give opposing counsel time to depose the expert and possibly retain an expert of his or her own. If an expert is identified as a testifying expert, be prepared to comply with the applicable discovery rules. Federal court has strict disclosure and discovery requirements for testifying experts. Additionally, in federal court, the expert will be subject to the stringent Daubert analysis.

Factors to Consider in Determining Whether to Retain an Expert:

• Whether an expert is required;
• Whether the proposed testimony is relevant and admissible;
• The nature and extent of the damages or injuries claimed;
• Whether the other side has retained an expert;
• Whether you can elicit favorable testimony from the other side's expert;
• Whether the testimony will simplify important issues for the jury;
• Ultimate goal of the case ' trial, mediation, settlement.

PRACTICE CONSIDERATION. Understanding the substantive law early in the case is imperative. The ability to identify whether an expert is required, the type of expert, and perhaps the qualifications of the expert, is helpful in order to determine whether a case should be removed to federal court, if possible, and subject to its standards for expert testimony and Daubert principles. Further, the FRCP imposes additional discovery requirements than those generally seen in state rules.

Basic Principles for Using Experts

Selecting the Expert. Once you have decided to retain an expert, here are some general considerations to help in your search to find the right one.

• Will you need an expert to address several issues or will you need multiple experts to address single issues?;
• The expert should be able to simplify the issues and educate the jury;
• The expert should be credible and persuasive;
• Do you prefer an expert that has several resources readily at hand or do you prefer an expert who is not perceived as a “hired gun”? (Big Shop vs. Small Shop);
• Consider whether a “hired gun” is the better choice because he or she has significant experience and understands his or her role in the litigation;
• The expert should have exceptional qualifications in a particular area;
• Before choosing, review authored publications for potential experts;
• An interview helps to evaluate whether the expert has time for you and your case;
• Don't neglect background research ' call references to determine strengths and weaknesses;
• Ascertain the expert's bias. Does the expert testify for one side only?;
• Will the area about which the expert is going to testify be admissible?;
• Ask other lawyers whether they have used experts in similar cases.

Where to Find Experts.

• Colleagues or other counsel;
• Other experts;
• Online research;
• Colleges or universities;
• Hospitals;
• Professional Associations ' Defense Research Institute; American Trial Lawyers Association, etc.

Discovery. As most, if not all, jurisdictions have specific discovery requirements for experts, the authors encourage the reader to review the jurisdiction's local rules for other applicable expert discovery requirements.

Expert Reports. The FRCP contains detailed provisions regarding expert witness disclosures. The term “expert” as used in Rule 26 refers to those persons who will testify under Rule 702 of the FRE with respect to scientific, technical and other specialized matters. See FRCP 26 advisory committee's note. Specifically, FRCP 26(a)(2) creates two separate types of expert disclosures: 1) subdivision 26(a)(2)(A) requires disclosure of any person who may be used at trial to present expert testimony under FRE 702, 703 or 705; and 2) subdivision 26(a)(2)(B) requires those witnesses who are retained or specially employed to provide expert testimony in a case or whose duties as an employee of the party regularly involve giving expert testimony. The latter type must prepare a comprehensive written report. The critical inquiry of whether an expert must prepare written reports under FRCP 26(a)(2)(B) turns on whether the judge considers the expert as being retained or specially employed to provide expert testimony. This is important insofar as many companies in products cases have employees who regularly testify on their behalf and, therefore, would be subject to the written report requirements under Rule 26(a)(2)(B).

The advisory committee notes to Rule 26 are instructive on when expert reports are required. For example, the written report requirements of subdivision 26(a)(2)(B) do not apply to independent doctors. The 1970 amendment to Rule 26 set forth the “new” provision concerning discovery of experts retained in connection with litigation. [FRCP 26(b)(4), Trial Preparation: Experts, distinguishes between testifying experts and consulting experts for purposes of discovery (ie, allows for the discovery of facts and opinions from testifying experts)]. The committee pointed out that subdivision 26(b)(4) “does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit.” See FRCP 26 advisory committee's note. Under such circumstances, the expert should be treated as an ordinary witness. Id.

Further, the advisory committee's notes to the 1993 amendments provide additional insight as to the scope of the written report requirements under 26(a)(2)(B). As the committee's notes confirm, subdivision 26(a)(2)(B) applies only to experts that a party retains or specially employs to provide expert testimony under Rules 702, 703, and 705 of the FRE or whose duties as an employee of the party regularly involve giving such expert testimony. This commentary suggests that other experts who are not in this category need not prepare a written report in accordance with 26(a)(2)(B).

The most common “hybrid” fact/ expert witness is the treating physician. The commentary to Rule 26 refers specifically to treating physicians as experts who can be deposed or called to testify at trial without any requirement of a written report. See FRCP 26 advisory committee's note. While the treating physician is considered an “expert,” the physician need not prepare an expert report if the physician did not acquire or develop his or her knowledge in anticipation of litigation or for trial, and if his or her testimony is based on personal knowledge. Brown v. Best Foods , 169 F.R.D. 385, 387 (M.D. Ala. 1996). In other words, a doctor is not an “expert” for written report purposes, if his or her testimony is based on observations during the course of treatment. Id. Moreover, merely paying a fee to attend a deposition or to testify at trial does not make a treating physician a specially retained or employed expert so as to require the preparation of an expert written report. Hall v. Sykes , 164 F.R.D. 46 (E.D. Va. 1995). This analysis should hold true for any “hybrid” witness with expertise in an area of scientific, technical or specialized knowledge that would be helpful to the fact-finder. Sullivan v. Glock , Inc., 175 F.R.D. 497, 500, n. 5, 506 (D. MD. 1997).

If your expert is subject to the written report requirements, the disclosure requires the expert to produce a report in compliance with FRCP 26(a)(2)(B). The report must contain:

• the expert's signature;
• a complete statement of all opinions to be expressed and the bases and reasons for them;
• the data or other information considered by the expert in forming the opinions;
• the qualifications of the expert, including a list of all publications authored within the preceding 10 years;
• the compensation to be paid for the opinion and testimony; and
• a list of all other cases where the witness has testified as an expert at trial or by deposition within the preceding 4 years.

Other Considerations

Deadline. Expert testimony must be disclosed by the date set by the court in its case management order, and at least 90 days before trial. FRCP 26(a)(2)(C). For rebuttal testimony, the party must disclose the testimony within 30 days of disclosure of the other party's witness. Id.

Daubert Challenge. In many jurisdictions, a party making a Daubert challenge must file the motion no later than the date that the proposed pretrial order is to be submitted. Otherwise, such objections will be waived, unless expressly authorized by court order based upon a showing that the failure to comply was justified.

Discovery. For testifying experts, assume all documents, including drafts and correspondence, in the expert's file are discoverable. See, Trigon Insurance Co. v. United States, No. CIV. 3:00CV365, 2001 WL 1456388 (E.D. Va. Nov. 9, 2001).

Documents and Information. Anything disclosed to a testifying expert in connection with his or her testimony is discoverable by the opposing party, whether or not the expert relies on the documents and information in preparation of his or her report. In Re: Tri-State Outdoor Media Group, Inc. v. Official Comm. Of Unsecured Creditors , 283 B.R. 358, 364 (M.D. Ga. 2002), quoting In re Pioneer Hi-Bred Int'l, Inc. , 238 F.3d 1370, 1375 (Fed. Cir. 2001).

Protected Documents. Documents that would otherwise be protected by the attorney-client privilege or work product doctrine are discoverable. In Re: Tri-State Outdoor Media Group, Inc. v. Official Comm. Of Unsecured Creditors , 283 B.R. 358, 364 (M.D. Ga. 2002); FRCP 26 Advisory Committee's Note to 1993 Amendment.

PRACTICE CONSIDERATION. Be sure to communicate how you would like the expert to communicate with you. It may be important that the expert not draft anything until after he or she verbally discusses his opinions and conclusions with you, and not put anything in writing until after such discussion.

Preparation. When preparing for your expert's deposition, make sure:

• You have sufficient time for thorough preparation;
• The expert grasps good and bad facts – discuss damaging facts or testimony;
• The expert understands the purpose of expert testimony;
• You grill the expert before the deposition;
• You review the expert's file beforehand;
• There are no surprises, please!

Litigation Costs. At the outset of engagement, reach an agreement with your expert on costs and billing. Usually, an expert has an hourly fee for reviewing records, preparing for depositions, and attending depositions. There may be a different fee for travel time and trial testimony.

Conclusion

Using experts in your products liability case is fraught with discovery and evidentiary hazards. Understanding these rules of engagement will greatly assist you in retaining and using the expert. Moreover, understanding the discovery and disclosure requirements at the outset will help you prepare for and anticipate expert discovery. Finally, a working knowledge of the issues outlined in this article will help you find the expert who can best assist you in reaching your objective in litigation.