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that anything I send a testifying expert is discoverable, I prefer not to do this because of its potential negative affect on a jury. Of course, there is little or no risk to having pure consulting experts sign these agreements. Make sure you question the expert about whether he or she has the time to take on the assignment. Although you cannot force the expert to focus on your case, obtaining assurances at the beginning of the relationship may get your case to the top of the pile when you need it to be. If your case will be filed in Federal Court, make sure the


expert knows upfront that, in order to comply with Federal Rule of Evidence (FRE) 26(a)(2), you will need, among other things, a signed report, a list of cases in which she has testified by deposition or at trial during the past 4 years, and a list of their qualifications, including a list of all publications authored in the previous 10 years. You may also want to run the expert through a service like Idex3


or a jury verdict search


to make sure that their list is not missing cases. Similarly, if they don’t have a list, but are willing to help you create one, these tools can be useful. If you don’t know -- and cannot learn through colleagues


-- how the expert operates, go meet with them to find out. I have encountered orthopedic surgeons who refuse to discuss permanency without first examining the patient and providing a written rating under the AMA Guidelines. In a patient with obviously minor permanency, this could lead to the injection of an unfortunately low permanency rating into your case. I have never regretted meeting with an expert at an early stage in a case. I can’t say that about the converse. Confirm with the expert the accuracy of their curriculum vitae.


3 Now a part of Lexis-Nexis.


Lastly, make sure that the expert is personable and can


teach and tell stories. In my experience, juries weigh the expert’s methodology and presentation more heavily than his or her credentials. Similarly, an expert’s arrogance can kill your case. If you can’t convince the expert to get rid of it, get rid of the expert.


II. Early Preparation First,


learn the facts of your case. Second, become


knowledgeable about the expert’s area of expertise before you meet with them. Having the expert teach you basics that you could easily pick up through the Internet or books will waste your client’s money and diminish your standing with the expert. Tird, give the expert all of the factual case material; both positive and negative (exclude your work product as this would waive its protections in most jurisdictions).4


If you make


the expert vulnerable to the following cross-examination: “So, Mr. Plaintiff ’s Counsel did not provide you with…” both you and the expert will be tainted and your role as truth-teller in the courtroom5


will be crippled. Fourth, index the records for


your expert. Experts appreciate it when you make their lives easier and clients appreciate not having to pay for the expert to organize your documents. Fifth, discuss the ground rules. For example, I typically


tell my non-treating physician experts not to put anything in writing unless we first discuss it. If there is a need for written communications, keep them formal. You want to give the impression that your expert is highly competent and impartial,


4 So, for example, in a minimal property damage collision case, show your expert the photos of the involved cars.


5 I try to ensure that everything I do in a courtroom leaves the fact-finder with the impression that I am the truth-teller.


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