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Picking, preparing and presenting expert witnesses have always been critical elements of litigation. A recent case � In re Initial Public Offering Sec. Litig., 471 F.3d 24, 34-41 (2d Cir. 2006) � clarifies the role experts can play in class certification. The 2d U.S. Circuit Court of Appeals explained that, contrary to the view that the plaintiffs’ counsel took of precedent, courts faced with a class certification motion could consider expert testimony and the various methods of proofs that would be used at trial. Such issues, the 2d Circuit explained, can be relevant to deciding whether, say, common issues predominate, or whether a class can be manageable. Regardless whether an expert is used at a preliminary stage or at trial, an effective presentation can be the difference between success and failure. A lawyer’s management of experts requires thought and active participation every step of the way. A lawyer should start thinking about which experts will be needed from the outset of a case. Some experts can be hired immediately. For example, damages experts often are hired at the beginning of cases, and can be helpful through their testimony but also in shaping theories and themes. Nontestifying consultants can advise on ways to approach certain issues from a case’s inception. A lawyer should have a clear idea of the objectives of a prospective expert’s testimony. Too often, lawyers hire experts without having a clear sense of what substance the expert should offer. Instead, they hire experts simply because they have a general sense that certain types of experts are appropriate for certain types of cases. Before lawyers seek out experts, they should have a command of the factual, legal and strategic landscape of the case so that they can focus on potential topics for the expert to address. Lawyers should choose an expert who will help win the case, not just an expert who knows the subject. Finding the right expert begins with having the right contacts. Networking with colleagues allows a lawyer to find out about an expert’s performance � which experts are effective, service-oriented and motivated. An expert should satisfy a baseline standard regarding his or her educational credentials, professional accolades and practical experience. A fact-finder will give credentials, accolades and experience weight because he or she may not always know whether an expert is credible simply on the basis of the expert’s testimony. Experts with high marks in all these areas thus are often worth their sometimes higher prices. Lawyers must remember, however, that an expert’s practical experience is a double-edged sword. It is true that someone who has testified in many cases will be more polished and less prone to wither under cross-examination. However, an expert who testifies many times, but only for plaintiffs or defendants, may have a credibility problem. Similarly, an expert’s testimony in an earlier case may come back to haunt him in later ones. Many lawyers prefer highly credentialed experts who have not previously testified. First-time experts are free from any taint of being “professional witnesses,” but, there is something to be said for picking an expert adept at avoiding pitfalls in the witness box. In any event, finding a suitable expert who is new to the courtroom is not always practical � one can only be a virgin once. Therefore, lawyers must research an expert’s history prior to retention. Lawyers should review an expert’s Daubert hearings, public and private testimony, and published articles. If a lawyer discovers that an expert has testified in many cases, he or she should consider whether the expert has offered testimony for both the plaintiffs’ and defendants’ bar. Lawyers should also check whether the expert has provided testimony for the opposing counsel’s law firm � if so, that will be helpful if the other side tries to attack the expert’s credibility. Finally, a lawyer should research whether an expert has ever offered damaging testimony on the issue upon which the expert would offer an opinion. A personal interview of an expert is important. A lawyer should probe whether the expert will have a problem adopting viewpoints that support his or her client’s positions. Furthermore, the lawyer should ensure that the expert will be available to offer the time and responsiveness required for the case. Four subjective factors should be evaluated. First, an effective expert must be a good communicator who expresses complicated ideas clearly. Second, the expert must be able to offer some measure of advocacy on behalf of the lawyers’ client. This means not only that the expert can advance the client’s position, but also that he or she does so with credibility. Third, the expert must have interpersonal skills. This means that the expert cannot have a bad temper or mannerisms that will distract or annoy a fact-finder. Fourth, a lawyer should consider whether an expert will appeal to a fact-finder’s potential cultural biases. An expert who would appeal to rural Texans will be different than one who would appeal to San Franciscans. Often, the best bet is to find experts near the location of the lawsuit, as they are more likely to understand the local culture and will not be viewed as interlopers. After retaining an expert, the lawyer must talk with him about his role early and often. A lawyer who simply hires an expert and expects to receive a good report or testimony takes a significant risk of damaging the case and wasting time and money. At retention, the lawyer should discuss the scope of the engagement in concrete terms. This should include the specific goals that the lawyer wishes to achieve, timelines for projects, cost estimates and performance criteria. Some lawyers put these guidelines in writing, but that’s not always advisable because written communications may be discoverable and may offer opposing counsel a road map of the lawyer’s case, or grist for cross-examination. After defining the scope, the lawyer should work with the expert on incremental, manageable projects. This will help the expert avoid venturing into unnecessary areas or overlooking important issues. Even experts well versed in their field need guidance in recognizing the most important issues. Moreover, having an expert work on small, specifically defined projects will force the lawyer and the expert to communicate frequently and evaluate throughout the litigation whether the expert’s work is still tied to case objectives. Frequent interaction with an expert also will help lawyers avoid an unpleasant surprise, such as a draft report that harms rather than helps the client. Finally, clients may be less likely to balk at bills if the charges on expert time reflect specifically defined tasks and come at predictable intervals and costs. Communicate with care Developing expert testimony may entail numerous drafts of written reports and communication of other kinds of information that could be discoverable. There is an important distinction between experts hired for testimony and nontestifying experts retained to offer consultation regarding legal strategies and advice. Unlike lawyers’ communications with experts hired for testimony, communications with experts hired for consultation are generally immune from discovery. See, e.g., Industrial Maritime Carriers Inc. v. PT (Persero) Inka, 179 F.R.D. 153 (E.D. Pa. 1998), opinion clarified, No. Civ.A. 96-7982, 1998 WL 472492 (E.D. Pa. July 23, 1998). As to experts hired for testimony, the Federal Rules of Civil Procedure require disclosure of expert reports. See Fed. R. Civ. P. 26(a)(2)(B). Some courts have read Rule 26(a)(2)(B) broadly to include all documents that counsel gave an expert in preparation for the expert’s testimony, as well as any other documents reviewed or prepared by the expert in the process of forming his opinion. See, e.g., B.C.F. Oil Refining Inc. v. Consolidated Edison Co. of New York Inc., 171 F.R.D. 57, 65 (S.D.N.Y. 1997). Other courts read the rule more narrowly, holding that information is only discoverable if the expert relied upon that information in forming his or her opinion. See, e.g., Intermedics Inc. v. Ventritex Inc., 139 F.R.D. 384, 387 (N.D. Calif. 1991). Discoverable information might include drafts of expert reports bearing counsel’s comments (see Weil v. Long Island Savings Bank, 206 F.R.D. 38 (E.D.N.Y. 2001)), and even a lawyer’s oral communications with his expert (see Karn v. Ingersoll-Rand Co., 168 F.R.D. 633 (N.D. Ind. 1996)). Lawyers, however, should avoid outsmarting themselves by withholding information from experts for fear that it will be discoverable. An expert may be asked whether he has seen all the relevant information � and if he believes he has not, his opinion may be undercut. Expert witnesses should be as prepared for testimony as lay witnesses. A lawyer invites serious damage to his case if he assumes that even an experienced expert could not benefit from preparation for live testimony. Lawyers should role-play with their expert. Before a deposition, they should pretend to be opposing counsel conducting the deposition and ask pointed, difficult questions. Prior to trial, a mock trial in front of a mock jury is an excellent exercise for both the expert and the lawyer. As with a deposition, the lawyer and expert can work through some of the potentially thorny questions the expert may get on cross-examination. Further, the expert can get feedback on stylistic mannerisms that the mock jury found either ineffective or irritating. The expert also can test a visual aid’s effectiveness; a visual aid can be very effective if an expert uses it properly. As for the lawyer, he can get feedback from the mock jury on the clarity and persuasive impact of the expert’s points. Picking the right expert is an art in itself. But it is only the beginning of effectively using an expert. No matter how experienced an expert, a lawyer’s guidance in preparing and presenting the witness can be critical to success. Robert Long is an associate at Atlanta-based Alston & Bird, where he focuses his practice on securities and commercial litigation.

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