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Now that You Have Hired an Expert



You've reviewed various experts' resumes and considered their pricing. You've even conducted an initial screening interview to make sure the expert you are considering has not testified in the past on behalf of your opponent (or its counsel).

Now what? This is where the real work begins.

1. Expert Witness Contract -- In order to document the terms of the expert's engagement (i.e., how much will you pay the expert; when is the expert expected to be available, etc.), you should have a contract with the expert. This can be as simple as a letter from you that is countersigned by the expert. More importantly, however, a contract helps establish the attorney work-product privilege. This privileged prevents the expert from testifying on cross-examination as to his conversations with you and/or other trial preparation. (His actual trial or deposition testimony is not privileged).

2. Fact Check Your Expert's CV -- Unfortunately, "creative resume writing" is not uncommon in the non-expert world. Although it is less common in the case of experts (who should expect their CVs to undergo rigorous scrutiny) it still exists -- thus creating an opportunity for impeachment. The best way to anticipate an ambush of your expert based on a dishonest CV is to ferret out the problems before you put that expert's credentials into the case. This fact checking is in addition, of course, to fact checking the opposing expert's CV.

3. Educate Your Expert -- Although experts are, by definition, knowledgeable about their particular field of expertise, you must educate your expert as to your particular case. This involves more than just familiarizing the expert with the facts. In addition, the expert needs to understand your approach to the case and how his or her testimony fits into the larger strategy of the case. Although experts are often critical to winning or losing the case, they are not THE case. An expert who does not understand your case can come across as "disconnected" from your client's position.

Remember that the expert is essentially a tool for the lawyer's use in the case. Like any tool, you need to make sure your expert is properly "calibrated" and "maintained."

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