The Best Available Expert Witness: A Reality of Litigation

There is an old Rolling Stones lyric that captures a recurring reality in litigation: you cannot always get what you want. Sometimes, however, you can get what you need.

That is particularly true when it comes to expert witnesses. In an ideal case, counsel identifies the need for expert testimony early, selects the preferred expert, retains that person well before any disclosure deadline, and provides sufficient time to understand the facts, assist with discovery, develop opinions, and prepare a thoughtful report.

An experienced expert brought into a case early can do considerably more than ultimately write a report. The expert may identify technical issues that otherwise would be missed, suggest additional documents that should be obtained, help formulate discovery and deposition questions, and generally help counsel better understand both the strengths and weaknesses of the case.

Unfortunately, litigation rarely unfolds in an ideal fashion.

When the Preferred Expert Is Not Available

Lawyers sometimes discover that the expert they wanted simply is not available. Perhaps there is a conflict. Perhaps the expert has already been retained by another party. The expert may be committed to another trial, unable to meet the disclosure deadline, retired, dealing with personal circumstances, or simply too busy to accept another engagement. Sometimes an expert who initially accepted an assignment unexpectedly becomes unavailable. And, candidly, sometimes counsel simply waited too long to begin the process.

Whatever the reason, the practical problem can become very real very quickly. An expert disclosure deadline is approaching, and counsel needs someone who can review what may be a substantial record, understand the relevant issues, formulate defensible opinions, and prepare the necessary disclosure or report within the time remaining.

The expert must be retained, conflicts cleared, financial arrangements completed, and the relevant materials delivered with enough time remaining to actually do the work.

At that point, the question may no longer be, “Who would be my first choice to serve as the expert in this case?”

The more practical question becomes: “Who is the best available qualified expert who can responsibly complete the assignment within the time available?”

There is an important difference between those questions.

Expert Deadlines Have Consequences

Expert disclosure deadlines are not procedural housekeeping. In federal litigation, Federal Rule of Civil Procedure 26(a)(2) governs disclosure of expert testimony and, for retained experts subject to the written-report requirement, generally requires a report containing a complete statement of the opinions the expert will express, together with the bases and reasons for those opinions and the facts or data considered in forming them.

State-court practitioners must separately examine the rules governing the particular jurisdiction. Each state has its own rules of civil procedure and evidence, and the requirements concerning expert disclosures, reports, supplementation, timing, and admissibility can differ. Many state systems follow concepts and procedures generally familiar from federal practice, but counsel should never assume the requirements are identical. The applicable state rules, local rules, case-management orders, and controlling decisions need to be examined in every case.

The broader principle is straightforward: courts do not reward surprise. An expert generally should not be expected to arrive at trial and offer significant opinions that were never properly disclosed during the expert-discovery process. The precise consequences depend upon the governing rules and circumstances, but counsel should proceed on the assumption that opinions necessary to the case need to be properly developed and timely disclosed.

That makes the expert report or whatever form of expert disclosure the applicable jurisdiction requires, extremely important. It tells opposing counsel what the expert intends to say and, as a practical matter, frequently establishes the boundaries within which the expert will later be expected to testify.

Why Having the Right Expert Matters

In some cases, expert testimony is helpful. In others, it is essential. Where specialized knowledge is necessary to establish an element of a claim or defense, the absence of admissible expert testimony can expose a party to summary judgment or another dispositive motion. If the case reaches trial, the same deficiency may create problems surviving a motion for judgment as a matter of law or its state-law equivalent.

The problem can arise even earlier. Cases are frequently settled based upon each side’s assessment of what ultimately can be proved at trial. Experienced opposing counsel will recognize a significant gap in the other side’s expert case, and that deficiency inevitably affects settlement leverage.

There is also a basic limitation every trial lawyer understands: lawyers can investigate, argue, examine witnesses, and write briefs, but trial counsel cannot supply missing expert testimony. If proof of a necessary proposition requires specialized knowledge, someone qualified has to provide it.

That is why an approaching expert deadline can turn what appeared to be an ordinary scheduling problem into a potentially significant litigation problem.

Rule 702 Remains the Guardrail

Time pressure does not change the fundamental requirements governing expert testimony.

Federal Rule of Evidence 702 permits testimony from a witness qualified through knowledge, skill, experience, training, or education when the expert’s specialized knowledge will assist the trier of fact and the proponent establishes the other requirements of the rule. Among other things, the testimony must be based upon sufficient facts or data, result from reliable principles and methods, and reflect a reliable application of those principles and methods to the facts of the case.

The current federal rule requires the proponent to demonstrate to the court that the admissibility requirements are satisfied on a “more likely than not” basis. State evidentiary standards again must be examined separately, but the underlying lesson for both counsel and the proposed expert is straightforward:

Urgency does not create expertise, and a rapidly approaching deadline does not excuse unreliable opinions.

At the same time, Rule 702 does not require the expert to be perfect or necessarily to be the foremost authority in the world on the subject. The question is whether this particular expert is qualified to offer these particular opinions and whether those opinions satisfy the applicable reliability requirements.

Once that threshold is satisfied, weaknesses may become appropriate subjects for competing expert testimony, deposition, and cross-examination rather than necessarily grounds for exclusion.

The objective therefore cannot simply be to find someone willing to put a name on a report. It is to locate an expert who possesses sufficient relevant expertise to study the particular facts, formulate supportable opinions, explain those opinions clearly, and defend them through deposition, admissibility challenges, rebuttal testimony, and ultimately cross-examination.

Learning the Case Versus Learning the Subject Matter

The pressure does not run only in one direction. An expert contacted shortly before a deadline has an independent professional decision to make:

Is this an assignment that falls within an area in which the expert can responsibly offer opinions?

That question should not be confused with whether the expert already knows every fact or technical detail relevant to the particular case. No expert does.

Every new engagement requires the expert to learn the case by reviewing the documents, understanding the facts, evaluating competing evidence, performing whatever analysis is appropriate, and applying existing knowledge and experience to the particular circumstances presented.

There is therefore an important distinction between learning the case and learning the subject matter.

Every expert must learn the case. An expert should be considerably more cautious if accepting the assignment would require first learning the underlying field in which the expert proposes to offer opinions.

At the same time, expertise is rarely confined to a single microscopic subject. An experienced professional may possess decades of education, training, and practical experience that provide a substantial foundation for evaluating an issue somewhat different from the matters the expert encounters every day.

Indeed, Rule 702 expressly recognizes knowledge, skill, experience, training, and education as potential bases for qualification.

The fact that another person has more specialized experience does not necessarily mean the available expert is unqualified. The question is whether the expert possesses a sufficient foundation to analyze the particular issue reliably and defend the resulting opinions.

That determination requires judgment and candor from both the lawyer and the expert.

The Best Available Expert May Be What the Case Needs

Litigation does not require counsel to locate the person on earth who knows the most about a particular subject. There almost certainly will always be someone with more specialized knowledge, another credential, another publication, or greater experience with a narrowly defined issue.

The relevant question is whether the available expert is qualified to address the issues for which testimony is needed and can formulate reliable, supportable opinions based upon the facts of the particular case.

If the answer is yes, the fact that counsel originally preferred someone else does not make the available expert inadequate.

The resulting report may not be the report that would have been produced if counsel had begun the process eight months earlier and had unlimited access to every potential expert in the field. But litigation is conducted in the real world, under actual scheduling orders and actual deadlines.

A properly qualified expert who can provide reliable and admissible opinions may preserve an issue that otherwise could be vulnerable to dispositive motion, provide necessary evidence for trial, and materially improve the realistic prospects for settlement.

Sometimes the best available expert is exactly what the case needs.

Candor Is Essential

When counsel approaches an expert under compressed circumstances, the initial conversation should be unusually candid.

Counsel needs to explain the issues requiring expert testimony, the procedural posture of the case, the applicable deadline, the volume of material requiring review, and exactly what counsel expects the expert to accomplish.

If counsel has concerns about whether some portion of the assignment falls outside the expert’s experience, those concerns should be discussed immediately rather than discovered halfway through preparation of the report.

The expert owes counsel the same candor. There is nothing wrong with saying, “I am comfortable offering opinions on these issues, but that issue falls outside my expertise.”

Indeed, understanding and acknowledging the limits of one’s expertise is an important component of credibility. Counsel can then decide whether another expert is needed for a discrete issue, whether the assignment can appropriately be narrowed, or whether another expert needs to be found altogether.

What neither side should do is pretend that limitations do not exist simply because a deadline is approaching.

My father had an expression that fits these circumstances particularly well:

“I am not interested in making someone else’s solution into my problem.”

An expert may understand that a lawyer is in a difficult position and may genuinely want to help, but sympathy cannot justify accepting an assignment the expert is not qualified to perform.

No engagement is worth sacrificing professional credibility or assuming unnecessary professional exposure by offering opinions that cannot responsibly be defended.

Sometimes the correct answer is no.

Do Not Panic—Understand the Reality

Anyone who has tried cases for very long eventually encounters some version of this problem.

Experts develop conflicts. Schedules change. People become ill. Engagements unexpectedly fall apart. Deadlines that once appeared comfortably distant suddenly arrive. And sometimes lawyers simply wait too long.

When that happens, panic accomplishes nothing.

The task is to determine what expert testimony the case actually requires, identify the best qualified person who is realistically available, candidly evaluate that person’s qualifications and limitations, and determine whether reliable and defensible opinions can be developed and properly disclosed within the remaining time.

The preferred expert may no longer be available, and the perfect expert may never have existed.

What matters is finding a qualified expert who can responsibly provide what the case requires when the case requires it.

Which brings us back to the Rolling Stones:

You cannot always get what you want. But sometimes, if you try, you get what you need.

…….

Ralph A. Cantafio is an arbitrator, mediator, and expert witness whose practice focuses on upstream oil and gas disputes, including lease interpretation, mineral title, royalty, operating agreement, surface use, and related commercial and regulatory matters. A member of the American Arbitration Association's arbitration panel, he brings nearly 40 years of experience and a practical, business-oriented approach to resolving complex energy disputes.

Website: www.myralphlaw.com

Email: ralph@myralphlaw.com

Phone: 970.819.2371