An unfortunate practice among many attorneys is to wait until the last minute to retain an Expert Witness. This has put a strain on the attitude that Experts have toward attorneys. As Expert Witnesses will tell you, waiting to hire them for their services can be detrimental to all parties involved in the case. It burdens the Expert to perform at his best, sometimes having to process months of information and produce his opinion under unreasonable time constraints. This is not to the benefit of the attorney or the client. One Expert we interviewed had this to say,
“…frustration mounts, anger sets in, and you quietly curse the Litigators for waiting until the very last minute to solidify your expertise for case leverage. Thoughts of putting the monkey on their backs run through your head, like why not add a penalty for putting me, the expert, into a position of having to now work 15 hours per day to perform at my best. Where do we as experts justify the pressure generated by firms in general, without any consideration of the hurdles we’ll have to run in order to offer professional expertise. Should we tack on additional billable hours as “Overtime” pay, or swallow the enchilada that this is just the way things are done in the expert witness arena, and reconcile that this is your job description, live with it?”
Some attorneys believe that hiring an Expert at the outset of a case may not be cost-effective. However, in many cases, the opposite is true. An article featured by the American Bar Association supports the view that the trend is toward retaining the Expert at the beginning of the case. The authors, Lisa Pierce Reisz, Esq. and David V. Dilenschneider, Esq., in their article entitled, “Early Case Assessment: Get Experts Involved From Day One” write that, “Many litigators and their in-house counsel clients recognize that this process facilitates better decision-making with respect to whether and how to proceed with a case-ultimately resulting in more certainty and a reduction of costs.” They go on to say that hiring the Expert well before the court-imposed deadline is just good strategy.
Is it possible to put an end to the love-hate relationship that exists between attorneys and experts? Maybe this is a step in the right direction.
I completely agree with your take that retaining an expert witness at the stage of early case assessment will give both the expert and the attorney an added advantage to pursue the issues better. I believe, what is also important for the attorneys is to conduct a thorough due diligence on the expert – check out his/her testifying/ challenge history and the reliance that courts have placed on his/her testimony in the past. A small miss and you end up with an expert who can’t be of much help in court.
I agree and have trained a few clients to call me early since it saves them a great deal of time and money and allows them — on their client’s dime — to get the expertise necessary to prepare a case for trial.
Often, when retained at the last minute discovery has been cut off and the help an expert could have given early on is now useless and unavailable.
A lawyer should always start preparation for trial immediately not when the court tells him or her the trial is about to start.
I understand that only less than two percent of cases actually go to trial but one that is prepared for trial will settle for much less.