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When I talk to attorneys about selecting and deciding how to use a technical expert, I make the following recommendations:
Get the expert aboard at an early stage so he or she can help you prepare and focus your case and advise you about information you will need to obtain through discovery. This will save you a lot of time and misdirected energy.
Identify potential experts within the field or general area you are concerned with. Use technical and expert witness directories, agencies, computer searches, referrals and other available resources. Get as much information as you can about the qualifications and experience of each potential expert. Be aware that, more often than not, experts who have broad general experience in a given field will be more useful and effective than experts who have focused on one small sub-area.
When you have located an expert who appears suitable, contact the expert to discuss the case. Outline the facts and your objectives. Ask the expert whether he or she can help you. Find out how the expert would proceed and what technical and non-technical information he or she will need.
Once you have retained the expert, go over the facts of the case in detail and provide him or her with all relevant technical material, samples and reports and copies of pertinent deposition transcripts. If you provide the expert with all of the pertinent information you have at the outset, he or she will be able to function much more efficiently and effectively. This will help keep your costs down.
Some of the common mistakes that attorneys make in selecting experts are illustrated by cases in which I was recently involved:
One recent case demonstrated the importance of avoiding experts who cannot testify in simple, understandable terms.
I was retained by the attorneys for a small software computer company that was suing a larger and more prominent software company for copying computer code that it had developed. The attorneys had previously retained a cadre of computer programmers to serve as expert witnesses. The programmer experts had focused on code variances and programming techniques that were so esoteric and had incorporated so much detail into their presentation that their testimony was confusing and almost impossible to understand. Their analysis obscured the real issue—plagiarism. I prepared a greatly simplified presentation that was built around an exhibit that consisted of a side-by-side comparison of the images produced by the competing software products. This presentation demonstrated that the copying was so extensive and complete that the defendant had even copied the client’s mistakes. The client eventually settled on very favorable terms.
Another recent case illustrated the pitfalls of relying on under qualified experts.
I was retained to investigate a lumber mill accident that had killed three workers. The accident occurred when the rotating drum of a machine that stripped bark from the logs jammed. The workers turned the machine off and entered the drum without "locking out" (i.e., removing the electrical power from) the equipment, a safety measure mandated by OSHA. To clear the logjam, the men began to jump up and down on the stalled drum. While they were still inside the drum, it started rotating and crushed them against the logs.
The defendant relied on the electrician who had designed the circuitry for the machinery. He was adamant that the drum could not start up when the switch was turned off. I traced the problem to the design of the control circuitry that powered the drum. I determined, and demonstrated, that one could start the drum even when the switch was off by simply jerking it because the drum’s motion sensor circuitry thought the drum was moving and latched itself on. I was able to help the attorney who had retained me establish that, in order to save money, the electrician’s design had omitted a five dollar switch that would have prevented the accident; that the electrician did not know how the motion sensor worked, and that the electrician had not performed a failure mode analysis of the circuit that would have disclosed the defect.
A case that I just concluded showed how unduly limiting the scope of an expert’s investigation can have devastating consequences for the attorney relying on that expert.
A company that had sold power supplies to a computer manufacturer was being sued by its former customer. The manufacturer claimed that the power supplies had failed, destroying millions of dollars worth of computer equipment and ultimately causing the plaintiff’s business to fail. I was retained by the defense.
The plaintiff’s expert was a prominent engineer with impeccable credentials. However, he had not been asked to test any of the defendant’s power supplies and had only conducted a superficial examination of one of the computers that had allegedly failed. My technical analysis and testing of the computer supplies showed there was nothing wrong with them. My careful examination of the one failed computer introduced into evidence by the plaintiff disclosed burnt wiring and burns on exterior components that could only have been caused by the deliberate introduction of massive amounts of electrical current. Confronted with my testimony, the plaintiff’s expert was forced to agree that the most likely cause of the failure of the one computer he had examined was tampering.
When the central issues in a case are technical or scientific issues, it is critical to take the time to select the proper expert, to make sure that your expert has all of the information that he or she needs and to utilize the expert fully. If you put off retaining an expert to the last minute or fail to devote sufficient time or resources to the preparation of your expert testimony, the result could be disastrous.
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