Page 19 - Expert Witness

or at the trial. Regardless of the fee arrangement, it is advisable for the practitioner to collect any out-
standing balances due for litigation services prior to expert testimony to avoid any collection issues.

In most cases, when the practitioner is working as a consultant for litigation support, the fees and invoic-
ing information may be protected by the attorney work product privilege and may not be discoverable.
Conversely, in the role of an expert witness, the practitioner should understand that timekeeping, invoic-
ing, and billing information might be subject to discovery and analysis by the opposing party. In addi-
tion, the Federal Rules of Civil Procedure requires the practitioner’s expert witness to disclose the com-
pensation paid in the case. Whether serving as an expert witness or a consultant, the practitioner should
reach an agreement with the client or the client’s attorney on the type and details of information to be
disclosed in connection with the practitioner’s timekeeping and invoicing activities. It is also important
to note that certain jurisdictions, courts, and matters have specific timekeeping, disclosure, and invoicing
requirements.

Staffing and Supervision

Litigation services engagements require competent staffing because of the complex nature of the work.
In addition, attorneys usually demand significant involvement by the person who will be the expert wit-
ness. Therefore, to comply with the “General Standards Rule” (ET sec. 1.300.001), fn 8 a practitioner
needs to closely supervise the staff and be ready to testify that the work, exhibits, analyses, and the like
were prepared under his or her direct supervision and control. The practitioner who was asked to serve
as an expert witness is ultimately responsible for the staff assigned for each task and the supervision of
the work performed. Failure to assign staff with the proper experience and qualifications and to appro-
priately direct and supervise the work performed may adversely affect the quality and reliability of the
expert’s opinions. In addition, opposing legal counsel may attempt to discredit the expert witness and
the foundation for any opinions offered by the practitioner in situations in which the work performed
was not personally directed and supervised by the expert. The practitioner in an expert report or testimo-
ny often confirms the direction and control exercised by the practitioner over the staff and work per-
formed. Therefore, in cases in which it is anticipated that the practitioner will be unable to personally di-
rect and supervise the work performed in support of his or her expert opinions, the practitioner should
discuss this matter with the prospective client and the client’s attorney and consider the impact on ex-
pected expert opinions and testimony.

Sufficient Relevant Data fn 9

The practitioner needs to consider the following:

 Legal evidence. The courts have established rules for the determination of admissible evidence
and expert testimony. The expert witness generally can rely on documents that the parties to the
proceeding have authenticated or that are acceptable to the court under the various rules of evi-
dence. Each legal jurisdiction may have different rules governing what the expert witness may
rely upon; thus, it is important to communicate to the attorney what evidence is necessary to
support the expert witness’s conclusions and judgments. The practitioner may want to explicitly
state that he or she makes no representation as to the accuracy or completeness of such infor-

fn 8 SSFS No. 1, paragraph 6.

fn 9 SSFS No. 1, paragraph 6 and ET sec. 1.300.001.

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