Experts are a key part of any complex litigation. Being part of an expert team as an associate can mean taking charge of all the little (but still important) things: shuttling relevant documents to the expert, keeping track of what gets sent so that you have an accurate materials considered list, proofreading and cite checking the expert report, and putting together the final expert package for service. But there are opportunities for associates to make significant substantive contributions when working with experts as well. Below are three ways associates can do that.
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Be the Master of the Relevant Facts
Associates are often told to be the “master of the facts” for their cases. Working with experts is no different. First and foremost, you should identify the key documents and testimony needed to support the expert’s opinions. In complicated litigation with millions of pages of documents, this is no simple task. Distilling the documents and testimony to the key facts the expert needs requires you to understand your case’s themes, how those facts fit into those themes, and which facts and themes are relevant to the expert’s opinions.
Equally as important as the good facts, however, are the documents and testimony that may undermine the expert’s opinions. Know those as well—what are the opposing party’s key themes and what facts support them? Armed with these less-favorable facts, you will be able to pressure-test the expert’s opinions and anticipate possible criticisms and rebuttal. The result is a stronger expert report and a better prepared witness.
- Do the Deep Dive into the Expert’s Background and Experience
Opposing lawyers are always looking for cross-examination fodder based on weaknesses in the expert’s qualifications, experience, and prior writings. The last thing a party wants is to sponsor an expert opinion where the expert has made prior statements or writings that could be used to undermine that opinion. Even worse if those prior statements are a surprise at a deposition or trial. Associates can add value to the expert process by researching the expert’s background, looking in particular for prior cases where the expert’s opinions have been excluded or criticized, for overstatements or inaccuracies on a CV, and for journal articles, presentations, or other statements that may contradict the expert’s opinions (or could be painted that way by clever opposing counsel). By doing this research early, you can discuss potential issues with the expert and preempt possible cross-examination points.
- Volunteer to Do Mock Cross-Examinations During Prep
As the master of the facts and the expert’s background, you are well-positioned to help with deposition and trial preparation. That can include helping senior lawyers game plan how to prepare the witness, but it also means opportunities for cross-examination. Seek those opportunities out. Mock cross not only helps the expert prepare to testify, but it also serves as important skills development for associates. Associates can try different styles and approaches through multiple rounds of cross-examination, learn how to ask sharper questions and improve follow-up, and practice trying to control an often-experienced expert witness. The real-time feedback (did the witness answer the way I expected? And if not, how did I course-correct?) is invaluable. While mock cross helps you develop as a lawyer, the expert also benefits from your mastery of the factual record and the expert’s background—a better witness will emerge through tough cross on those issues.
