The Care and Feeding of Expert Witnesses Part 2

In The Care and Feeding of Expert Witnesses, John T. Bogart offers advice from the viewpoint of a reinsurance expert witness. Mr. Bogart has more than 34 years of insurance industry experience, ranging from liability underwriting to being the president and chief executive officer of a nationally recognized excess and surplus lines brokerage operation. He currently acts as an associate consultant with Robert Hughes Associates and has recently been involved in projects concerning reinsurance matters.

When I was asked to review material and provide an opinion on an insurance case for the first time, I had little idea what to expect or, for that matter, what was expected of me. In the five years since, I’ve read numerous articles and legal decisions on what and how experts may testify but have seen nothing directed to attorneys on how best to utilize this legal tool. What follows is a general sketch of advice, from the viewpoint of an expert witness and consultant, that attorneys may find of some interest….

3. Documents Sent Since at deposition he will need to provide a list of all materials that he used and that helped in forming his opinion, you may wish to cover the waterfront and send him everything. When boxes and boxes of materials arrive, he may very well be overwhelmed. Give him some guidance by prioritizing it. I always start with the complaint and get down pat the cast of characters in the case, both individuals and entities. Discuss the allegations of who did what to whom, and when, and guide him to the pertinent documentation on both sides. He needs to understand your opponent’s contentions and the bases for them if he is to defend his own and, hopefully, yours. Make sure the deposition transcripts have the exhibits attached or that your expert knows where to locate them. I’ve run up needless billable hours searching for documents mentioned in deposition transcripts, but not among those sent to me. Discuss with him the reading materials that he has obtained on his own and ask to see them, if practicable. Make sure that he understands the rules of discovery before allowing him to seek advice from his own sources, people or documents. These sources may be invaluable but should first have your approval.

4. Reports Don’t be shy about offering your suggestions after reviewing a first draft of a report. A good expert has (or should have) an ability to see that this report may be instrumental to the case and be willing to make necessary changes or to opine further on stated points without compromising his independent conclusions. In making your suggestions, it is a good idea to preface them with the words, “If you agree. Ö”

5. Preparation for Deposition and/or Trial Meet with him the day before a trial or deposition to go over all of the points he will make as well as to prepare him for topics that you expect will be asked. You don’t want to be surprised at deposition by any of his answers. Meeting on the day before also allows him time to run through in his head all of his conclusions and bases for them and to review again, alone in his hotel room, any discussions you had in preparations that day. Then have him arrive fresh in the morning, early enough for any last-minute conferring with you.

6. Attitude This is the most important of all, at least to me. Make him feel he is part of the team and not a “hired gun.” Reputable experts bridle at that term and to any vibes they get that they are being thought of that way. Introduce him to the other lawyers on your side and to your client, if you deem it wise. When he is in your office, treat him as you would a client, not as a vendor. If you retain the right person, he is a professional and expects to be treated as one. But while he may be on the team, you are the team captain, and he should not be attempting to try your case for you. If you see tendencies that way on his part, diplomatically suggest that there are legal reasons why you do what you do but that you look to his contributions to those aspects of the case for which you retained him. With a positive attitude on both sides and a clear understanding of his perspective, he should advance your case and help in bringing about a successful result.

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