APU Legal Studies Original

Waiting to Retain Experts Can Sometimes Imperil Legal Cases

By Dr. Gary L. Deel, Ph.D., J.D.
Associate Professor, Dr. Wallace E. Boston School of Business

In the past, I have written about my work as an expert witness in litigation matters involving hospitality industry personal injuries and premises liability matters. I often help with cases involving hotels, casinos, nightclubs, restaurants, theme parks and other settings.

My role in these cases is often twofold. First, I work as an expert consultant. I help the attorneys who retain me to investigate the factual background of these cases, understand the hospitality industry’s standards and practices, and assess the strength of the liability theories that are being asserted.

Second, I serve as an expert witness where needed or requested. I offer testimony to the court, which serves the purpose of educating the trier of fact – the judge and/or the jury – about hospitality industry knowledge that would not necessarily be intuitive to the average layperson.

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In testifying, an expert witness’s only loyalty is to truth and honesty. Expert witnesses are not advocates of either side in litigation; their role is to provide information that promotes justice in the outcome of a case, whatever that outcome may be.

But as a consultant or expert witness, I can only be as effective as time and information allow. At this point in my consultant/expert career, I have helped with nearly 100 cases. And one of the challenges that I frequently encounter is attorneys who wait too long to engage an expert, such that the support I can offer may be limited, especially on the consulting end of my duties.

In every civil case, there is a period known as discovery. According to the American Bar Association, discovery is a formal process and occurs when both sides are permitted to request information from the other side in order to understand the case.

Discovery is the fact-finding stage of a legal case. It commonly consists of requests to produce documents and answer questions called interrogatories. There may also be depositions taken of key parties and witnesses to help the lawyers better assess the case.

But discovery doesn’t last forever – the available time for discovery is often negotiated between the parties and then stipulated by the judge presiding over the case. After discovery ends, the doors to additional fact-finding generally close as well.

There is usually an expert disclosure deadline, at which point the attorneys are required to identify any testifying experts they intend to use and submit copies of reports and opinions from those experts. Unfortunately, it is not uncommon for attorneys to wait until that deadline is fast approaching or imminent before they retain an expert.

When an attorney waits until the last minute to retain an expert and enlist that expert’s help, the expert may be pressed for time to review the case file and make recommendations for additional discovery efforts. The time constraints and the extent to which this late-retention scenario impact a case often hinges on the expert’s availability and how much of their time is available to allocate to the case before the deadline arrives. It can certainly make such engagements more challenging.

I sometimes have attorneys who call to retain me within weeks or even days before the end of a key discovery window. Depending on how much free time I have available, I may have to decline because my schedule would not allow me to be thorough in such circumstances and I would not be able to properly complete my work in the way that the integrity of the profession requires.

But an often more pressing concern is that there may not be time to ask for additional facts or information to assist me in understanding the case or articulating opinions, regardless of how much time I have available to commit to the case.

Generally, the parties to litigation are usually afforded a reasonable amount of time to answer questions and produce materials in discovery. They are not obligated to rush because of another party’s decision to delay matters.

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Quantity Limits during a Case’s Discovery Phase Also Affect Experts

In addition to time-based deadlines for discovery, attorneys are also generally limited in the quantities for certain types of discovery requests. For example, on the interrogatory questions I mentioned earlier (“ROGs” for short), attorneys are generally only permitted to ask so many questions to the other side. If an attorney has already used all of their ROGs before retaining an expert, then that expert may not be able to request additional answers through this discovery tool, no matter how much time remains in the discovery period.

The same is true with depositions. Barring new evidence, new questions of fact, or another compelling reason, attorneys generally only get one opportunity to depose the plaintiff, defendant, or witnesses in a case. So if an expert has not been retained to advise attorneys on what questions need answers and what lines of inquiry should be explored before depositions occur, it is often too late to do anything about it after the fact.

Attorneys May Delay Hiring Experts Due to Costs

These multiple consequences from “late-in-the-game” expert retention can make it difficult for experts and consultants to do their best work in litigation. However, the tendency among attorneys to wait until the last possible moment to hire experts is understandable.

Why? Attorneys who represent clients carry a fiduciary duty to their clients. Part of that duty means they must act responsibly with respect to legal expenses they incur for cases, and they must always act in the best interests of their clients at all times.

According to The Law Dictionary, roughly 95% of all lawsuits filed end in a settlement before trial. And attorneys are well aware of this fact.

Sometimes those settlements are reached after experts are retained and expert testimony is given. But sometimes they can be reached amicably before experts ever need to be involved.

The work of expert witnesses can be very expensive – the current average rate is more than $400 per hour. So if it’s possible for an attorney to reach a successful settlement without incurring potentially unnecessary legal expenses for expert testimony, then they have a duty to their client to at least try. And that unwillingness to incur extra expenses is a good-faith reason why attorneys don’t necessarily jump to hire experts the moment they file their cases.

But on the other hand, some cases will require experts to move forward the arguments of the respective parties. In these situations, delays in retaining experts can actually harm such cases. So there is also an argument, under certain circumstances, that an attorney’s fiduciary duty is actually served by being proactive and retaining help early.

When to Hire an Expert Varies by Case

Of course, every case is different, and there is no “one size fits all” rule. Each attorney must use his or her professional judgment for each case to determine what expert resources are needed and when. But whenever it is clear that experts of any kind will be necessary to support a case effort, it is a good idea to enlist those resources early – so that those experts can do their best work to serve the interests of justice.

Gary Deel

Dr. Gary Deel is a Faculty Member with the Wallace E. Boston School of Business. He holds an A.S. and a B.S. in Space Studies, a B.S. in Psychology, a J.D. in Law, and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for the University, the University of Central Florida, Colorado State University and others.

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