Successfully Hiring and Managing Your Expert Witness

Episode Notes

Transcript

Jim Reeder:

Hello everyone and welcome to Litigation Radio. I’m your host, Jim Reeder. I’m a recently retired lawyer who practiced antitrust and commercial litigation in the Houston office of Jones Day. In addition to trying lawsuits, I’ve spent my entire career focused on helping young lawyers become great lawyers. On this show, we talk to the country’s top litigators, judges, in- house counsel and academics to discover best practices for developing careers, winning cases, getting more clients, and building a sustainable practice, all while staying well and happy. Be sure to subscribe to the podcast on your favorite podcasting app to make sure you never miss an episode. Litigation Radio is brought to you by the litigation section of the American Bar Association. It’s where I make my home in the ABA, and I’m a huge proponent of the section of litigation. This podcast is just one example of the dozens of resources the section of litigation provides litigators of all practice areas to help become successful trial lawyers for our clients.

Learn more and become a member at ambar.org/litigation. That’s ambar.org/litigation. Today, our topic is a very practical guide to successfully finding, hiring, and managing an expert. We’re fortunate to have as our guest with us today, a great trial lawyer, Seth Row, and an experienced expert witness placement professional, Deena Pack. Additionally, you’re going to want to stay with us as we also bring you a quick tip from Lauren Williams, who talks to us about how to polish your professional reputation by building rapport with staff. But first, let’s get started on expert witnesses. Our guests today are Seth Rao and Deana Pak. Seth Row is a partner at Stoll Reeves in Portland. Seth is a highly experienced insurance litigation attorney who for the past 20 plus years has been representing policyholders in negotiating and litigating insurance recovery disputes. His practice spans various industries offering a mix of litigation, counseling, and advocacy to help clients secure coverage under commercial insurance policies.

A fellow in the American College of Coverage Counsel, Seth is one of only 350 attorneys nationwide to be elected to this prestigious group. Seth is a longtime leader in the American Bar Association Section of Litigation and is a frequent author and presenter on insurance and litigation topics. Welcome, Seth.

Seth Row:

Thank you, Jim.

Jim Reeder:

Deena Pack is a senior manager of expert witness services at Roundtable Group in Washington DC, a premier sponsor of the ABA section of litigation. Deena is a licensed attorney and has over 20 years of experience in the legal industry. She began working in expert referral services in 2012 and has served in a variety of roles, leading to her current title at Roundtable Group. Deena works closely with her attorney clients to determine their expert needs and match them with experienced and qualified professionals for litigation purposes. She guides her clients and experts throughout each step of the expert retention process. Welcome to you, Deena.

Deena Pack:

Thanks, Jim. Happy to be here.

Jim Reeder:

All right. So anybody who’s listened to me on this podcast knows that I start the same way with everybody, because I think it’s important. Even though we’ve known each other for a while, I think that one of the things that helps contribute to all of our collective learning and our civil discourse and our understanding is just getting to know each other. I think it provides incredible insight into why each of us thinks the way we do. As such, I like to start off by having our guests do two things. One, share a thumbnail of your career path. How did you get where you are? And two, share something about yourself, your background, your childhood, and experience that has shaped who you are. So Deena Pack, tell us who you are.

Deena Pack:

Thanks, Jim. I am from a very small town in West Virginia. Growing up, my mom was an elementary school teacher, and everybody always said, “Are you going to be a teacher?” So I wanted to be anything but a teacher. I went to law school at West Virginia University College of Law and graduated in 2003, and I’ve had various jobs with the Public Defender’s Office, the Supreme Court of Appeals of West Virginia. And then I had the opportunity to join Roundtable Group and it’s something new every day, which is one of the things I enjoy about the job the most. Something interesting about me, and Seth is aware of this. Currently, in the first year of the second term as mayor of my small hometown in West Virginia, I’m trying to stay involved in the community, show my children the importance of community service and trying to make things better instead of just complaining about the things that you don’t like.

Jim Reeder:

Is it the town you grew up in?

Deena Pack:

Yes, it is.

Jim Reeder:

How about that? I love that. All right. So you have kids. How many kids you’ve got?

Deena Pack:

I have an 18-year-old that’s about to graduate from high school, which is breaking my heart. And I have a 14-year-old, a son. My son’s 18 and my daughter’s 14.

Jim Reeder:

Well, we’ll do an episode at some point. I’ll call you back on empty nest syndrome. Please do.

Deena Pack:

I need help.

Jim Reeder:

It had a huge impact on me as well. And it may be one of those things about myself that people need to understand if they’re going to understand who I am as well. All right, cool. Dana, thank you very much. Seth, tell us about yourself, Seth.

Seth Row:

Jim, I started out as many litigators do with a judicial clerkship in the federal trial courts, two years there. And then I moved to Portland, Oregon, where I’ve been ever since. I did a little bit of employment litigation on the defense side. Then I broadened out, changed firms, broadened out to doing some products, liability defense, commercial litigation of all types with a national firm with the Portland office there for a number of years before finding my niche in insurance coverage on the policyholder side, which I’ve been doing now for 20 years and really almost exclusively that for the last 15 years or so. In all of that, a truly formative experience for me was litigating a dispute between the inventor of a supposedly innovative consumer home product and the product manufacturer, which was my client. And the inventor was accusing the manufacturer, which was a well-known brand in home goods.

They were being accused of failing to market the product adequately. We had experts of all types in direct to consumer marketing, including academics, professors of marketing, and we had experts on infomercials. That’s kind of how long ago this was, and experts on home shopping networks. And it was really enjoyable to learn from these folks, but exhausting, as you can imagine. And part of that was because some of these folks were not what you might call linear thinkers. They were more creative types. So that was different. On a personal note, my dad was a scientist and what we would now call kind of a lifelong learner, he was a scientist in different fields, economics and forestry, different things, really encouraged curiosity about the world. And I think that served me well in working, particularly in working with experts, but also in handling a career that’s kind of bounced around due to the economy between different firms and different practice areas.

Jim Reeder:

That’s exactly the kind of thing that if we could share three or four things about ourselves with each other, it would go so far to us understanding and not attributing motive or bad motive to people. It’s just, you know what? I’m a linear thinker or I’m not. I don’t go from A to B to C to D. I go from A to Z back to F, right? That’s an important point to understand about anybody. I care about process versus I care about just the end. All right. I just get to the end. I don’t care. The process is not important to me. I don’t learn from the … All right. Those kind of basic things, I learn orally, I learn verbally, I learn some other way I think are really, really wonderful. And you grow up and you don’t realize that there are people who do it differently.

So if you grew up and you were the son of a scientist, of course this is the way things go. It’s like we drink grapefruit juice. Surely everybody drinks grapefruit juice until you go to your friend’s house and you realize, oh, some people actually drink orange juice. Anyway, so glad you both are here because I think that your backgrounds obviously and your experiences here are going to really generate some great information for our listeners. All right, cool. Thank y’all for doing that. All right, so now let’s turn to our topic. Successfully finding, hiring, managing an expert, all those things. Finding, hiring, managing. I think it’s fair to say that expert witnesses are a critical element of any case today, any case today. Every case today seems to need an expert and not just for damages calculations. That’s where you used to be. You had somebody come in here, do your damages calculations, but for reliability issues, no matter how arcane they are, testifying experts are now, I think, commonplace, particularly these subject matter experts that are hard to find and then hard to choose.

How do you compare them and determine which one’s best? Even if the lawyer has some experience with the subject matter, which isn’t always the case, it’s still difficult. And of course, experts can be some of the most expensive costs of the case, so you can’t afford to make a mistake. So let’s start at the beginning. First, Seth, when is the best time to find and hire the expert?

Seth Row:

Well, Jim, it really could be any time. Generally speaking, the earlier, the better, like all kinds of things. Obviously, if you’re on the plaintiff’s side, you’ve got the luxury sometimes of time to investigate your case. But frequently, I find when I’ve done sort of professional negligence types of cases where the issue is the standard of care, I frankly don’t even know if I have a case to tell my client we should pursue until I’ve retained an expert. So that’s when you hire an expert early on. Certainly, if you’re on the defense side, sometimes you’ll want to try to find an expert before your answer is due. Oftentimes you don’t have that luxury. If you want to get a handle on the value of the claims, due diligence, early settlement now, a lot of contracts, construction contracts, for example, now commonly require kind of extensive rounds of ADR.

And so you will end up needing to hire an expert more likely than not well before litigation is filed just because of the ADR process that you’re going through there. And sometimes it’s just a good idea to get an expert on board, even if you’re just having settlement discussions. And then sometimes when some discovery’s taken place, you find that there’s a new issue in the case. That happens all the time. If I’m on the plaintiff’s side in one of my insurance cases and the defendant insurance company raises some, they’re coming up with their defenses, they raise some issue, I may need to kind of hire an expert midstream. So really, I think there is no rule. It depends on how soon your client is up for starting to pay those costs, but also depends on the need of the case, as in everything with litigation, the sooner the better in general.

Deena Pack:

And I would agree with Seth also that it’s very case specific. I’m working on a couple of matters now. One is a class action. The original complaint was filed, and then this law firm that I’m working with was appointed lead counsel. So they are in the process of writing an amended complaint and they’re looking for an expert that can assist them with that because it’s a topic that the attorneys are not familiar with. So they want to get that attorney or that expert on board now to help with that amended complaint and then also serve in other various capacities throughout the process. But the important part now is that amended complaint. In another matter, there is an expert that is being considered to write a rebuttal report. So that’s a little bit further in the process because the defense, this is the one that I’m working with in that case, and they’ve received a report from the plaintiff’s expert, and they need someone to rebut that.

So it really just depends on where the case is, what the needs are, if they need a rebuttal, or if they need assistance with asking interrogatory questions or they want help with depositions. So what should I ask this plaintiff’s expert during the deposition? So just really depends on the case, what’s happening in the case, and what the attorney’s needs are.

Jim Reeder:

I practiced for 40 years and I still got intimidated by the expert. I got intimidated by them showing up. I could tell when I got a complaint that an expert had had a role in, and I took it more seriously because it seemed like it was more serious because they had clearly had gotten an expert to help them on creating the complaint. They show up at the first deposition and you’re like, “Oh my God, who is this? ” And then they’re there to help ask questions. And you’re now up against not only the lawyer on the other side who you feel like you’ve got under control, but now you’ve got this expert. So it’s important not just to help you substantively, but optically as well, I think. And so then that raises the question, so you’ve decided you’re going to hire this expert or two or three or however many you need, but how do you go about finding it or her, experienced, credible, likable expert, particularly on a subject matter that’s outside your bailiwick?

This is what you do, Deena. How do you do that?

Deena Pack:

So I think it’s important to have a conversation with the attorney that’s looking for the expert and make sure that you understand what it is that they’re looking for. Obviously, they need to be whatever the subject matter of the case is, that that expert needs to have a really strong handle on that subject matter. Then some of the attorneys have underlying clients that are very particular about the location of the expert. They may think, “Well, if this goes to trial, I want someone who’s going to play well to the jury that’s not going to be considered an outsider.” Or if you’re in the south, they don’t want a Yankee or vice versa. So those are considerations to take into mind when you’re looking for an expert. Also, do you have a particular comfort level with an expert’s testifying experience? Do you want someone that’s had a lot of experience, but you might have to do more research into ways that they can be challenged by the opposing counsel?

Or do you want to spend some time kind of teaching an expert the ropes on testimony, but then they might not have that experience and may not perform well when they’re actually in the moment? So those are just some of the things that I think you need to look for initially when you’re deciding to start looking for an expert.

Jim Reeder:

So those are the things you can sort of create a checklist, right? Okay. I want them, okay, this is cases in Texas. I want them to be Texas based or not, et cetera, et cetera. All right. So you’ve got that. You’ve got that sort of list.You’ve talked to the client, you’ve figured that kind of thing out. So now you got to start shaking the bushes. What do you do? Dean, let’s start with you. What’s your experience there? And then Seth, I want you to chime in as well.

Deena Pack:

Most of the time when an attorney comes to me, they’ve already kind of checked out the bushes in their neck of the woods, for lack of a better term, to see if there’s somebody that might fit the bill. When they come to me, usually they’ve had some difficulties in that search. So there’s a network of experts that might fit the bill. There are Lexus, Nexis, there’s Westlaw where you can find expert reports, experts that have talked about the subject that you’re looking for, where you can actually see the reports that they’ve presented in cases to see if they meet your standards. Sometimes you can find experts through other organizations. You can look at university websites, things like that where you can, if you’re looking for an academic.

Jim Reeder:

Trade organizations,

Deena Pack:

Obviously,

Jim Reeder:

Where you have had people who have been involved in a particular industry doing

Deena Pack:

Certain

Jim Reeder:

Things, obviously. Yeah. So you’ve got your trade organizations, you’ve got your local universities and your bigger universities, you’ve got all … And those obviously, Deena, you all have access to everybody. You’re independent of anybody else. So you don’t have to go to a particular roster of people. You can grab whoever’s best, right?

Deena Pack:

Exactly. And when you make that list with the attorney that you’re working with, they may have … It’s kind of, I think, a smart idea to kind of rank what’s most important to them because if they’re looking for … If they definitely want someone local, then you’re not going to look at a university across the country. You know that you have to focus in their area. You can do a focus search, but still throw out a very wide net in that focused area in all of the different things that we’ve discussed, the trade organizations, the universities, the maybe cases from the jurisdiction in there and see what experts might have previously been involved in cases in that jurisdiction. So it’s definitely smart to know exactly what you’re looking for and then throw out that wide net to see what comes in initially.

Jim Reeder:

Seth, how often do you have to go outside of your colleagues, your partners, your colleagues at the office, your colleagues in your particular bar area and practice who you probably reach out to as well? I assume that’s the first place you start. How often do you then have to go beyond that?

Seth Row:

I would say actually fairly frequently because I’ve got a roster of folks that I go to for the, I would say, the expert needs that exist in almost every coverage case, forensic accountant, bad faith expert. Anything beyond that is likely to be something that’s case specific, specific to the industry perhaps that my client is in. And so sometimes I have good luck surveying my colleagues, but oftentimes I want to cast a wider net. Oregon’s not a particularly big place. And of course, my firm, we litigate all over the place, but the Northwest is our core. So I fairly frequently, I would say, Jim, go outside of that network. But I think the thing to keep in mind that I always try to keep in mind is not to have the hubris of the experienced litigator that I actually know what it is that I’m looking for.

I try to keep a very open mind and assume that there’s a lot I don’t know. And that in fact, even though I think I may need an expert with this degree, actually I need an expert with that degree or that qualification or that experience. Experience has taught me to be very humble about the breadth and depth of my lack of knowledge about particularly technical things involving construction, which comes up a lot, electric grids and the energy world. And then a lot of my practice involves long-tail environmental claims.

There’s really no end to what you don’t know as a lawyer.

Jim Reeder:

In my practice, it was economics and everybody and their brother seems to be an economics expert. And then just trying to weed through all of that, which I want to talk to about in a second. But I also found, and I was sometimes embarrassed about it, but I pretty much had a contact at every big national litigation consulting support firm, right? BRG, which is a Section sponsor, FTI, Analysis Group all those places. I’ve probably left somebody else out, but that’s all right. I had somebody that I could send an email to. Do you do that, Seth, where you just send an email, “Hey, listen, I’m looking for such and such.” And obviously you’re just going to use one of them, ultimately, Anchor or somebody, but hopefully you spread it out over time so that they keep taking your calls or taking your emails. But do you do that?

Seth Row:

Yes. I do try to spread things around and try to cultivate contacts and sometimes people move from one to the other, particularly, well, actually in all this fields that we’ve mentioned. So yeah, I do try to keep it … It’s a great reason, honestly, to go to ABA conferences. Many of the experts come. They want to speak with the litigators that they work with. Sometimes that’s the only time I see these people in person, is it that we’ve got the Tucson conference coming up later this week. There are going to be judges there that I have cases in front of, mediators that I’m mediating in front of arbitrators that I’m arbitrating in front of, and plenty of experts there that I’m currently working with or that I’ve worked with recently. And so yeah, developing a network, Jim, like you said, is very important, as well as relationships with search services like Deana’s.

Deena Pack:

And to further Seth’s point, I think being open to the process is very important as well, because if you start out thinking you need someone in a certain area with a certain expertise and you get a couple of CVs or maybe have a couple of calls with these folks, and then you realize, well, wait a second, that’s not the exact right fit for the case. So actually being aware that, “Hey, I may not have the right person right off the bat and being willing to maybe consider other options is very important to the process to make sure that you’re getting the person that’s going to be the right fit that’s going to help you achieve the outcome that you’re looking for in your case.” Yeah.

Jim Reeder:

And that’s true actually just of being a litigator, frankly, how many times have we changed the movie reel of our case as we’ve proceeded because of learning something new or being derailed on a particular thought process or thread? But Deena talked about CVs. She talked about phone calls. Seth, let’s talk about the next steps after you’ve got your list of possible experts and you’re trying to identify the one or two that you’re going to choose. Tell us about that process, which the great thing about the process is that you’re learning the whole time and you’re learning from a bunch of different people over time, but take us through that process.

Seth Row:

So first, I check them. If it wasn’t a referral from colleagues, I check them out with colleagues. Have you heard of this person? Check them out with lawyers that have used them before. So I usually ask for references right off the bat, check the references first. I like to do a phone call or a Zoom meeting early on, and that’s because you’ve got to connect with these people. You can really get a sense when you’ve got someone on video, even in setting up the meeting, how do they go about scheduling their time? Are they on top of things? It’s particularly folks who are not professional experts. You can learn a lot about whether this is actually someone you can work with from just a very 20 minutes at the outset. So I do that. I like to do that early on. Deena knows this well.

I like to have an early call, just kind of do what my kids would call a vibe check with this potential expert.

Jim Reeder:

So this is not the evaluative that is the substantive evaluative call. You have two calls, or do you do it all together?

Seth Row:

Sometimes I do it all together. I mean, if I’m connecting with this person, then maybe I start to tell them about the case, right? But oftentimes it’s not that. It’s just early get to know you because what is the purpose of your expert? The end goal may be they’re testifying at trial. I’ve hired many experts who have never testified before at trial, did a fantastic job, but you get that sense from talking to them. Looking at their publications, all kinds of things, it gives you all kinds of sort of, I would call defensive information perhaps. But if you’re going on the offense with this person, that’s going to be their oral communication skills. Do they have them? Many don’t. And you just need to weed that out because what are they going to be doing? Even if they’re going to show up at mediation, they’ve got to be able to communicate with the mediator.

They’re going to show up at your client’s board meeting to explain to them that’s oral communication skills. Very important.

Deena Pack:

Seth, your point about having, is the vibe check, what’s the vibe check like? I think that’s so much more important than people realize because your time is money as well. So if you have a quick call and the vibe is off with that expert, and you can kind of get a sense that it’s not going to be an easy relationship if you were to retain that expert, then there’s no point in having a further discussion about the details of the case or going into more detail because you know from that initial vibe check that it’s just not going to work. And so many times, I think getting that sense very early on save so much time because I just don’t think it’s going to work. There’s a personality clash. Or like you said, the expert may not handle their schedules well and they’re constantly having to reschedule a call or they’re constantly saying, “I’ll get back to you about that, ” and they don’t respond quickly.

That’s what you would have to look forward to should you retain that expert. So those are things that I think play very much into what an engagement would look like. So being aware of that going in helps you, I think, make the best decision for what you’re looking for in the case.

Seth Row:

After you do the call, then that initial call, then I ask for their published writings. You do not want to get into the situation where they’re going to testify to A, but in prior writings, they’ve espoused the opinion B, you don’t want to be embarrassed like that. Prior testimony, publications, and then a more in depth call. I mean, you’re obviously engaging them at the start as a consulting expert because you may not like their opinions once they’ve had the chance to review the file or review the plans or whatever it is that they’re looking at so you get more substantive and then get the input of your team. But that bi check part, one issue that I run into sometimes is with larger matters where you’ve got staffing, you’ve got junior partners, you’ve got associates, it is awfully tempting to offload when you’re at the initial stages, offload this task of vetting experts to someone junior because it’s a lot of time involved.

That initial meeting, that needs to be the first chair trial lawyer meeting that expert, right? Because that’s what’s going to be at trial. You’ve got to have the person with the experience about, is this person going to perform well at trial? You need to have your most experienced person on your litigation team talking to that expert because they’ll be the ones that’ll have the best judgment, I would say, about that.

Jim Reeder:

Yeah. It’s obviously going to get more eyes and more ears because that’s what the jury’s going to be. It’s the judge. They’re not, again, as we talked about earlier, people learn different ways, they look at things different ways, they’re linear, they’re not linear, et cetera. All those people are going to be taking in this information. So I think all that’s critical, but obviously I think you’re right. Senior trial lawyer needs to be on every call and making decisions. Some of the things that were important to me, do they push back to me or are they willing to be malleable? There’s the old joke about experts where you interviewed one expert and you asked them what two plus two was and they said three and you said, “Okay, thanks very much.” And you asked the second expert and they said, “What’s two plus two?” And they said four.

I said, “Okay, good. Thanks very much.” And the third one came in and said, “What’s two plus two?” And they said, “What’d you have in mind?” I don’t advocate that expert, but I do want somebody who’s going to actually be a little open-minded about how we proceed and all that’s part, again, part of the vibe check. Okay, that’s a great place to take a break. We’ll be back shortly with our guests, Seth Rall and Deena Pack as we get into the keys to a successful expert engagement. And remember to stay tuned for our quick Tip from Lauren Williams on polishing your professional reputation. But now let’s get a quick word from our sponsors. We’re back with Deena Pack with the Roundtable Group and Seth Rawe, a partner at Stoll Reeves in Portland. All right, so you’ve identified your experts, you’ve hired them. Now you can go back to practicing law, right?

Is that it?

Seth Row:

No, definitely not, Jim. There’s a lot more to it and it’s something that you have to be thinking about from that initial step through to the end of the case. This is where sometimes sort of things fall through the cracks and then you end up with a scramble at the end and you want to avoid that. You need to make an initial plan with the expert about when a report’s due, when can they get you a draft, milestone deadlines along the way. When are depositions going to happen in relation to when their report is done? The usual tempo of a case is a lot of time spent on written discovery. So there’s going to be documents coming in. You’ll want to get them to the expert, but they really oftentimes will need deposition testimony to form their opinions. And so just kind of you need to establish a plan and make sure that you understand when they’re going to be out of the country, when they’re going to be at academic conferences and unavailable, et cetera, et cetera.

You need to set up your internal rules for communications and drafts. Establish with the expert from the outset how you are going to get them documents and how they should ask for more information if they need it. My preference is generally to avoid email as much as possible. I like to talk to … I ask experts to communicate with me, my staff, over the phone.

Jim Reeder:

That’s a huge, huge point because our industry, the legal industry has evolved into a only email communication kind of format. I mean, it’s amazing how many young lawyers only communicate via email to the other side, to the expert, et cetera. No, no. We’re going to start using the phone again, right?

Seth Row:

Exactly. Yes. And for someone who’s new to being an expert, this can seem very, very strange. They’re not used to this at all. Most professions I think have evolved to kind of abhorre oral communication. Entirely, it’s all email, text message, something like that. Anyway, set up your rules, educate the expert about why, because once they understand why, then it’s easier for them to remember not to type out an email where they put in maybe some opinions that you don’t like particularly, et cetera. Or asking for information that you actually don’t have or can’t get them or don’t want to give them. So things like that. And then you need to talk with the expert about their work product. Are you going to ask them to help you formulate discovery? I encourage that. Are you going to ask them for a very early kind of tentative opinion based on just your spending half an hour telling them the facts and then you want to get their read on things or not?

Are they going to need documents? Are they going to help you with mediation? Will there be a written report? In most cases, there will be. Will it be cursory or fulsome? There are, of course, jurisdictions and Oregon state courts are one of them where there is no expert discovery, no requirement of a report necessarily. The expert may assume things, disabuse them of assumptions they may have about the jurisdiction that you’re in or what’s going to be required of them. Will there be an opportunity for reply, rebuttal, et cetera, who your staff are, who they should communicate with, methodologies. If this is a true technical expert that’s going to be doing some examination, some inspections, some testing, walk through what that looks like, who’s going to retain the final work product, who’s going to retain the thing that’s being tested at the end? Will other experts need to be invited to the testing, all that sort of thing?

Or the onsite inspections or the whatever it is. And then budget. Don’t ignore the budget. Clients don’t like it. They clients do not like it. If you’ve ignored the budget and you kind of gave a blank check to this expert, that’s not a good idea.

Deena Pack:

Yeah, I would absolutely agree that communication is key. Communicate early and often so that the attorney and the expert are on the same page. I think we all know that these cases evolve many times throughout the process. If there’s been a change in, let’s say deadlines have been pushed for any reason, that needs to be clearly communicated. If you have asked them to start working on something, but you’re maybe entering settlement negotiations, you need to let the expert know, “Hey, pencil’s down until I let you know the outcome of this, ” so that you may settle it, but then you get this invoice from the expert that he’s completed a bunch of work because he didn’t know that you were in settlement negotiations. As far as budget goes, when you have those budget discussions early on, there may not be a lot of information on the number of documents or what the expectations are of the amount of things that the expert’s going to be asked to review.

So that probably needs to be a conversation that happens as the documents come in or as maybe the theories of the case change and you need them to do more work than you initially thought. Because if you had one expectation regarding budget at the beginning and then a lot of things have changed throughout the case, that expectation can’t really be relied upon at that point. So those are things that all need to be discussed as they pop up. You can’t go for a long period of time without having a clear communication with the expert and then not expect there to be snags or issues.

Jim Reeder:

The thing that that raises with me also is that, and Seth mentioned this earlier, for some period of time, you could have your younger lawyers, if you will, even if it’s a young partner or senior associate or middle level associate as the point person with some lower staff level person at the expert and they’re going along and they’re communicating on a regular basis and your assumption is that they’re getting the things they need and they’re providing the stuff that they … If you’re not involved, at least periodically, then there’s a lot of waste going on in my experience through that process. And so it does seem to me that, Seth, that you need to have some sort of regular scheduled sort of senior lawyer testifier communication, don’t you think?

Seth Row:

Yes, I do. Definitely. Yeah. A regular check-in will help. I have many times, you just learn. You learn from the experts. And sometimes it’s that … Sometimes I almost feel like it’s great to have stepped away to be taking kind of a 50,000 foot view of the case, and then you can drop in and maybe your senior associate’s been having very detailed discussions with the expert. And you can drop in because if you’re thinking about how is this case going to present to the jury, sometimes you come in with a question that’s, “Oh, it unveils something perhaps slightly unexpected and maybe your case takes a different direction.” So it’s that, yes, I think having the senior people do a regular check-in is critical. And simply to say, if it’s nothing more than are you getting everything that you need because you do not want to have your expert get up on the stand and on cross exam be asked, “Well, wouldn’t it have been helpful if you’d had this document or that document?” Well, yeah, actually now that you mentioned it, it would’ve been good to have that.

You don’t want that. And you don’t want to

Deena Pack:

Rely on the associates to relay information all the time either because inevitably things slip through the cracks. So if you actually are the ones having that communication, you can be sure that you’re covering everything.

Jim Reeder:

You’re also assessing how the internal communication to the expert is going actually also. That is right. I mean, you get them on the call and you start asking questions and they clearly have not had any communication with their staff who’s been doing all this work. That becomes a concern as well. And you may have to have a little tatotet about their involvement. Okay. This is fantastic. And we talk about this a lot longer because it is so, so important. And so we may do that. But in the meantime, thanks Deena. Thanks, Seth. Feel free to come back anytime to share further thoughts. In fact, I know we can talk about how you produce a compelling report, a successful deposition, et cetera. So let’s look forward to that. Thank you both.

Deena Pack:

Thank you. Thanks,

Lauren Williams:

Jim.

Jim Reeder:

Now I want to welcome back Lauren Williams with another quick tip. Lauren practices corporate law at Morgan Stanley in Columbia, South Carolina. Lauren, what’s your tip?

Lauren Williams:

Thank you. I am so excited to be here. Today we’re going to talk about a group of people who quietly run our professional lives. Those are our court staff and clerks who are the backbones of the judicial system. So these are the people that know the calendars, the clerks, the unwritten rules, and all the realities that go on in the courthouse. And yet a lot of lawyers treat them like a filing cabinet with a pulse. So today’s tip is to build real genuine rapport with staff and clerks and not just be nice when you want something. This is a very good long-term litigation strategy. First, how you treat staff as a part of your professional reputation. People think that your reputation is only built on big trials, big wins, big arguments, or billing big hours. But let me tell you a secret. There are clerks who have watched your entire career from the front row.

They’ve seen how you talk to your clients in the hallway. They’ve seen how patient or impatient you may be when the docket goes sideways and they know who is consistently respectful and who only turns it on when the judge walks in. And you may think that you’re just venting or just trying to express yourself, but they also see your character. And let me tell you, the courthouse walls talk. Now, respect isn’t just your tone, it’s about how you prepare to do these things. So being nice in person, but you’re also constantly filing things wrong, ignoring rules, blowing past procedures, that’s not respectful. It creates extra work and stress for the staff that they didn’t ask for. So it’s important to learn that the courthouse is like things submitted a certain way. Double check instructions before you call and not making your emergency everyone else’s emergency.

When you show up prepared and you’re organized, you’re letting them know that you not only respect their time, you respect their role, and you’re not just handling them a mess and asking them to fix it for you. Small, consistent kindness goes further than anything that is big or dramatic gestures. My grandmother always taught me it doesn’t hurt to say hello and it costs nothing to be kind. You don’t have to give big gifts or do anything over the top, but basic humanity goes a long way. Good morning. How are you? Thank you for helping with that. I appreciate you. If someone goes out of their way to help you on a logistical issue, remember it. A sincere, I really appreciate you is free and it’s rare enough that people feel it. If the only time staff only hears from you is when you have a problem that needs to be solved ASAP, you are building just dread around them.

And yes, it’s easy to say that they need to do their job, but they are also humans and they’re helping you to do your job. So my point is your relationship with courthouse staff should not only exist when you’re in crisis mode. These staff see lawyers that are chronically late. They see which cases are just nightmares. They see patterns in how different attorneys treat co-counsel, opposing counsel, and other parties. If you create and maintain a relationship with respect, patient, and basic human decency, a lot of the times they’ll gently guide you away from landmines you didn’t know existed and give you helpful tips. They look out for you in ways that pay dividends down the road. There is always someone in a courthouse that will quietly work their magic to help you out, whether it’s a bailiff, a law clerk, or a court reporter. Remember, your power as a litigator does not come from treating everyone like they’re your servant.

Your power is recognizing that you are a part of a team and that everyone plays an integral role in ensuring your success. So the way that you move through the building, the way that you treat people and the way people feel after dealing with you matter. Cases may be decided from the bench, but the process of getting to the bench are carried on the backs of the staff. And how you treat them will follow you longer than anyone ruling. And that’s my tip for today.

Jim Reeder:

Thanks, Lauren, for another great quick tip. And our special thanks to our guests, Deena Pack, Senior Manager of Expert Witness Services at Roundtable Group in Washington, DC, and Seth Rao, a partner at Soul Reeves in Portland for providing important guidance on successfully finding, hiring, and utilizing an expert. Thanks to the litigation section premier sponsor, Roundtable Group for sponsoring this podcast. Roundtable Group is an expert witness search and referral service with decades of experience and a comprehensive array of academic and industry relationships, as well as access to proprietary tools that further enhance the expert search capabilities of attorneys with no upfront fees. You only pay if you retain an expert referred by Roundtable Group. Learn more at www.roundtablegroup.com. A reminder to be sure and subscribe to Litigation Radio on your favorite podcasting app so you don’t miss our next episode. And spread the word. If you like the show, please help spread the word by sharing a link to this episode with a friend or through a post on social media and invite others to join the show and community.

If you want to leave a review over at Apple Podcasts, it’s incredibly helpful. Even a quick rating over at Spotify podcasts. It’s super helpful as well. Finally, I want to quickly thank some folks who make this show possible. Thanks to Michelle Oberts, who is the producer on staff with the litigation section. Thanks. Also go out to the co-chairs of the litigation Section’s audio content committee, Haley Maple and Mike Stager, and thank you to the audio professionals from Legal Talk Network. And last, but not least, thanks to you for listening. I’m Jim Reeder. I’ll talk to you later.

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