The Care and Feeding of Expert Witnesses Part 1

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.

1. Selection Process Start your search early. I’m always amazed when I receive frantic phone calls from attorneys saying they must designate an expert that day or the next day. Allow time to find an expert, to connect, (considering the usual telephone tag delays), to chat, and to get a feeling for the chemistry between you, and to briefly discuss your case. Ask the potential expert’s experience in the course of his career with matters germane to your case, and ask whether he has ever testified on anything similar. Get his general feelings about your case while keeping in mind that he now has only a thumbnail sketch of the issues involved. Tell him up front your time constraints, if and when a written report is required, and the dates of trial and probable deposition. Make sure he has the time to devote to your case. You don’t want him “squeezing you in” between other pressing cases. Discuss fees and retainers. Ask him to fax you his most recent CV and a list of prior testimony, along with the names and firms of attorneys who have retained him. Check him out. If he’s smart, he’ll probably be looking you up in Martindale-Hubbell within minutes of getting off the phone. If not time- and expense-prohibitive, arrange a meeting either at your office or his. If he is going to come to you, make it clear that you will pay for his time and expenses. There may be experts who are willing to give up a day or more to meet with you for free, but they are not going to be the ones whose time is very valuable and thus probably not the ones you want. I’ve had attorneys who expected me to crisscross the country for an interview with no more compensation than an airline seat. I politely but firmly terminated those inquiries. The first hour of this expert’s time is usually free. After that the meter runs, as it does with lawyers.

2. After Retention Detail as much as possible the areas and questions upon which you are asking him to opine. Obviously, you cannot and should not tell him what his opinions are. After he has had a chance to review materials you have sent, you may certainly ask his opinions and, just as importantly, the bases for his opinions. Challenge him politely to defend them. Your opponent certainly will do so in deposition and at trial! Pick his brain and let him talk. I’ve had attorneys discover a whole new tack they may decide to take because of what they learned about how things really operate in my discipline. Now that you’ve retained him, all that he knows and has experienced is at your disposal. Take advantage of it.

Part 2 to follow. Read more here.