Fragile: Handle with Care
Three principles for managing expert witnesses in bad faith claims.
A great deal has been written about how to locate good expert witnesses. Most, if not all, of what has been published about selecting and retaining an expert witness is geared toward lawyers, however. Little has been written about handling bad faith claims involving expert witnesses and about you, the claims professional, and your company’s relationship with them. The management of their critical role is far too important to be left to attorneys alone. You have a vital role where expert witnesses are involved, if you choose.
The following article focuses on the management of expert witnesses in bad faith claims. However, many of the observations in this article apply equally to expert witnesses retained in all types of cases. Here, we’ll take a look at this difficult task from the perspective of three popular adages.
First, tell them what you’re going to do. Begin the relationship with an expert witness by letting them know your plan. It’s good to take a two-sided approach and get to know each other before either party signs a contract. Start by setting up a face-to-face meeting at the earliest opportunity. Tell them something about yourself and listen to what they have to say about their experience and background.
If an in-person meeting is not possible beforehand, be sure to make a telephone call including your attorney and talk before you retain an expert for your bad faith case. If you cannot meet in person, insist that the attorney representing you or your company meets with the proposed expert before a contract is signed. If you do not hire the expert, what you discuss ordinarily will not be discoverable. Without this effort, it’s difficult to gain a good understanding or to be able to measure a person you have never met, including an expert witness.
Another opportunity to meet might be possible after the expert is retained during pretrial activities. If the expert is located out of state, as is often the case, insist that he meet with you or the attorney when either of you are on other business in the expert’s locality. This also will serve the commendable purpose of holding down expenses.
It should be relatively easy to arrange a meeting with experts who are located in the state where the lawsuit is pending. You, the attorney handling the lawsuit, or both may attend a hearing or other pretrial proceedings in the case, which presents an opportunity to meet any experts located in that venue. This too works to keep expenses down.
The least desirable time for a first meeting with an expert is right before he testifies at trial, although there may be no alternative in some cases. If there is no other option, at least meet for dinner before trial but do not talk about the case. It most likely will come out as a fact that you met and talked together even if what you, or the retaining attorney, say to one another is held as privileged by the trial judge. Let there be no question of privilege, if it comes to that. When asked if you met before testifying at trial, let the expert be able to say truthfully something like, “Yes, and we talked about our children.”
Second, tell them what you’re doing. In the management of bad faith cases, letting the expert witnesses know what you’re doing means providing the documents, depositions, and discovery they need and keeping in contact with them throughout the litigation.
Provide your experts with the documents and testimony they need as long as that information was also produced in discovery or will be produced in discovery simultaneously with providing it to your expert for review. It is a universal rule followed by courts in the United States that expert opinions should be based on sufficient information or what judges deem an adequate foundation.
When you or another authorized party provide documentation and testimony to an expert, do not explode a privilege by providing your complete claim file. For example, if you represent an insurance company, provide to the same degree only what has been produced in discovery, including what has been ordered by the judge to be produced in that case.
The opposite often is also true: If you represent or work for an insurance company, be prepared to provide to your expert the entire claim file that you produce in discovery.
Further, keep in continual contact with your expert witness throughout the progress of the case. This does not mean that you tell the expert anything about what other people have testified, for example. Other testimony should be contained in the affidavits, depositions, and answers to interrogatories in the case that you already should have asked the expert to review. What other people are testifying about is not a subject for discussion between you and your expert—even though you should receive summaries of what your attorney and your expert discuss. Their conversations may be privileged, and, almost certainly, the attorney’s impressions and opinions expressed to you will be held immune from discovery.
Throughout the case, continual contact with your expert witness means more than your attorney or your company keeping in contact with the expert, although this is certainly necessary. Good management of bad faith claims involving expert witnesses is, to say again, too important to be left to the attorneys only.
If you cannot touch base regularly with the expert, designate someone in your office or firm to make contact when you cannot. The purpose is simply to touch base, keep open human interaction, and stay on top of the person’s status—the reasons could be as simple as being able to trust but verify, you might say. You and the expert have a contractual relationship, a unique and different contractual relationship, perhaps, but a relationship nonetheless. There is no substitute for intentionally checking in with him, which includes the contact your attorney maintains with the expert. Remember that you do not have to make the contact yourself, but you should see to it that someone who also works at your company makes contact on your behalf.
This is a bad faith case you are managing, and the consequences of failure are not desirable. The small amount of time it takes to make a telephone call or to send an email will be worth it in the end—if only for you to be able to tell your manager or supervisor that it was your practice and you had it regularly scheduled to call or email your experts. In these cases, it is not enough to receive reports from your company’s lawyers that they heard from the expert two or three months ago and the expert was alive and healthy at that time.
Third, tell them what you’ve done. In the context of managing bad faith claims involving expert witnesses, this principle is as simple as telling the expert what has happened at trial before he arrived to testify—to the extent that you or your attorney can carefully do so. As a legal and practical matter, most of this discussion should be conducted by your attorney. To some extent, you can and should participate, beginning after the expert has arrived to testify but at least the day or night before the witness is scheduled to take the witness stand.
Your attorney always should tell the expert what rulings the trial judge has made that in any way affect the substance or subject of his testimony—you should attend this discussion as well.
Your attorney will have been at the trial from day one. You, however, may not be present throughout every moment of the trial, even if you serve as your company’s representative. When you are present, nothing should prevent you from bringing rulings you think might affect the expert’s ability to testify in the case to the attorney’s attention. Speak privately with your attorney and take a momentary break from discussions with the expert before mentioning a particular piece of information. There may be a good reason for not apprising the expert of some information.
In the final analysis, it is up to those who know—your attorney and the trial team—to advise the arriving expert who is unaware of the pretrial rulings. While there is no reason for you to withhold this information from the expert, you should at least discuss it with the attorney before advising the expert on something that concerns how the trial has been conducted.
The subject of whether the expert was advised of the judge’s rulings at trial often is asked during the cross-examination of the expert. If the cross-examiner correctly states the judge’s rulings, in the eyes of the judge and jury, it is important for the expert to know what they are. The attorney who represents you or your company should object if the cross-examiner misstates those rulings. If there are no objections, the jury may be led to believe that the cross-examiner stated the judge’s rulings correctly, and they may be hearing for the first time about rulings made by the judge outside of their presence.
You are not passive in managing bad faith claims. Equally, you are not expected to be passive in managing bad faith claims when they involve expert witnesses. These cases are too important to leave their management in the hands of your attorneys alone.