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Tips On Finding The Perfect Damages Expert

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5 Tips On Finding The Perfect Damages Expert
By Erin Coe

Law360, New York (October 05, 2010) -- Finding a good economic damages expert is critical for the success of any lawsuit,
but if lawyers don’t put in the work ahead of time, they could end up with an expert who dramatically undermines their
case.

“You have to scour the earth and not settle for someone who’s passable, but someone who’s perfect because an expert can
make or break your case,” said Jeremy Creelan, a partner in Jenner & Block LLP’s litigation department.

“Often the expert is the primary spokesperson for your position and is the person who can take a step back and tie all the
pieces together,” Creelan said.

Because economic damages experts can play such a fundamental role in the outcome of a legal battle, it pays to know what
to look for when recruiting one. Here, Law360 offers five tips to help attorneys retain the best expert for their case, and get
the most out of them.

1. Don't Wait Till It's Too Late

The best expert is one who is prepared, but unfortunately many attorneys wait until too late in the game to bring in an
economic expert, according to Ronald Luke, principal consultant and president of Research & Planning Consultants LP.

“Lawyers hope the case settles or don’t want to incur the expenses, so they wait until after a few rounds of discovery to
retain experts, but they haven’t always asked for the right information from the opposing party,” he said.

Experts are much more effective with a judge or jury when they have had time to master the relevant material and can
consider the facts from the client’s perspective as well as potential arguments from the other side, Luke said.

“I’ve seen situations where attorneys got experts too late and experts didn’t become thoroughly familiar with the case.
Because of that, their testimony was beat up or thrown out,” he said.

One of the best ways an expert can assist lawyers is to think through the damages issues early on in order to put together
interrogatory and document requests for discovery purposes, Luke said.

“I always try to bring experts in early not only to begin the formulation of my client’s testimony, but to conceptualize the
case more broadly,” Creelan said. “It’s helpful to think through the difficult issues that could be raised by the defense and
conceptualize your own affirmative claims.”

2. Consider the Cost
Lawyers have to be prepared to shell out somewhere between $200 an hour to $1,500 an hour for an expert, according to
Creelan.

“Experts who have terrific resumes can cost an enormous amount, and lawyers need to make sure they are not hiring an
expert who does a good job but costs so much it’s the wrong choice,” he said. “Lawyers should find an expert who fits the
profile of the case.”

Experts on securities cases tend to be costlier because the cases involve more money and clients have deeper pockets,
whereas experts in an arcane area, such as collective bargaining in a labor dispute over pension funds, would be much
cheaper because the market cannot bear exorbitant fees, Creelan said.

“It’s important to find the type of expert who is going to solve your problems and not going to cost you more than you want
to pay,” said Thomas Roney, founder of economic consulting firm Thomas Roney LLC.

Lawyers should find out whether the amount of economic damages are at least $200,000, as well as whether the losses
could extend into the future, Roney said.

“Economists are good at forecasting and discounting losses in the future, such as lost earnings or lost home services over
the next 20 to 30 years,” he said. “If the case involves losses from the past, a lawyer could just get a consultant for a few
hours.”

3. Target the Expertise You Want

Experts are going to be helpful only if they are skilled in doing the appropriate economic analysis and methodology needed
in a case and are well-versed in a specific industry, according to Creelan, who often represents consumer product
companies.

“If a damages expert’s entire career has focused on securities matters, and this case is about toaster ovens, that presents
potential vulnerabilities,” he said.

Many factors must be considered when looking at the impact of conduct on sales or injuries to consumers or investors, and
some industries are more affected by trade policies, global trends, the economic climate or emerging technologies, Creelan
said.

“You want someone who is conversant in the industry and can talk about certain products with a level of credibility,” he
said.

When it comes to picking academic or professional witnesses, attorney Mark Nadeau often goes with experts who have an
academic background because they typically come off as more independent.

“While you don’t have control over them and they don’t always cooperate as well, they do give a case what it really needs
— an independent look,” said Nadeau, co-managing partner of DLA Piper’s Phoenix office and chair of the office’s litigation
department. “If the expert is too readily willing to throw his hat in and agree with your client, he won’t sell as well.”

Other times, lawyers may want an expert who has substantial experience giving depositions and being put on the stand,
according to experts.

“If you have experts with experience, they know the drill, are often more polished as witnesses and know the pitfalls to
avoid in depositions,” Creelan said.
Lawyers should scrutinize an expert’s materials to make sure the information is presented in the way they want for their
case, Roney said.

“Some reports are a page or two, while others are more thorough and explain how and why experts made the choices in
estimating the loss of economic damages,” he said. “But some attorneys don’t want the expense of a longer report.”

To avoid a disaster, lawyers also need to find out if experts have published material or given earlier testimonies that could
be considered inconsistent and used against them later, according to Nadeau.

“It’s really important that experts disclose if they’ve published materials or given testimony before so that you can review
them,” he said. “One of the easiest ways to impeach experts is by quoting them back to themselves.”

4. Make Sure Your Expert Can Bring Home the Message

When hunting for an expert, Nadeau thinks of himself as a casting director who is looking for the ideal actor to present the
case. In addition to determining whether an academic or professional expert will fit the bill, he considers such factors as
sex, race, age and whether the person should have a certain accent.

“I try to pick someone who is appealing and can deliver the message,” he said. “It’s a reflexive judgment exercise on how
well a person will fit in with the client in the context of the courtroom and in the context of the people we are trying to
persuade.”

Lawyers are responsible for working with their experts to coach them for a deposition or a presentation in mediation,
arbitration or trial, and Nadeau has sometimes videotaped his experts to show that they are talking while jangling coins in
their pocket or using awkward hand gestures, because those factors impact the force of their delivery.

He also has learned to advise experts in advance on what to wear, he said.

“Part of the role of experts is their appearance,” Nadeau said. “If they show up in completely ruffled pants, without a suit
jacket and with their hair unkempt, while that might be acceptable for teaching class, it’s not appropriate when they are
trying to impress people in the room.”

An expert may be the smartest person present, but if he can’t communicate or answer questions in trial, that will severely
limit his effectiveness, according to Creelan.

Lawyers should test experts’ ability to think on their feet by giving them a canned oral examination, he said.

“Even a perfectly articulate, smart expert can turn into a deer in the headlights when there’s a deposition or trial,” he said.
“You need to try to spend enough time with an expert so you have a comfort level with how that person’s brain works and
how one responds to high-pressure situations.”

Overconfident experts who rely too heavily on their credentials should be avoided because they are likely to be “popped
like a balloon at trial,” Creelan said.

“Often the best-paid experts rely on underlings to do their work and show up for trial or a deposition inadequately
prepared,” he said. “These experts are ripe for being discredited.”

By taking the time up front to find a suitable expert for each case, lawyers will be giving themselves an advantage, Nadeau
said.
“If you merely take a referral from a client or you are in the habit of using one expert, those things are going to come back
to bite you,” he said.

5. Know What an Expert Can Do for You

While experts should clearly have the ability to write up an articulate report and act as a credible witness, they also bring
other strengths to a case that lawyers should keep in mind to maximize the value of their expert.

By letting lawyers stay focused on proving liability in a case, experts can address any discovery holes by identifying the
medical records that need to be collected and other potential areas of damages, such as lost employment benefits,
retirement benefits and home services, Roney said.

Experts can also serve as lawyers’ best critics, according to Creelan.

“They can point out the weaknesses in your arguments before you make them and reveal lines of inquiry on the offensive
and defensive sides,” he said. “To me, experts are critical because they’ve thought deeply about an area that you may be
confronting for the first time.”

They can even clue lawyers in on whether they have a case at all, Roney said.

A case is often propped up by four key elements: a good client who presents well, strong liability, a large amount of
economic damages and an opposing party with deep pockets, he said.

“If a case does not have all four, it will be hard to get a good verdict,” Roney said. “An economist can help prove up whether
damages are actually there and let you know early on whether you have all four legs of the chair.”

								
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