by Alexis Swanzy and Andrew J. Upton
Experts present a unique opportunity for young attorneys to take on a key role in cases. You might be called on to find an expert, serve as the liaison between your firm and the expert, attend an inspection with an expert, prepare direct or cross-examination outlines for depositions, or prepare a Daubert motion. Thinking about experts from the beginning of a case will help maximize the value an expert can bring and put your client in the best position to succeed.
It is important to define the scope of expert retention carefully. What will the expert opine on? What will the expert not opine on? Is the expert free to address ancillary issues or tangents that come up in their analysis? Or do you want to tightly control the expert’s scope? Many experts, like attorneys, may enjoy showing their expertise and want to be helpful. But when you thought you were getting a relatively short report and the final product shows up in your inbox spanning double digit pages, the issues are plenty. Not only is your client on the hook for additional expert time and costs, but there is now additional material for cross-examination and possible impeachment. Your expert’s opinion should be tied to the claim, defense, or elements in question. While you should take advantage of all the knowledge that an expert has to offer, be sure that the expert fits into your case strategy, and not the other way around.
What Rules Apply to the Case?
We find ourselves in an interesting spot at the moment, as Texas attorneys need to be aware of three different sets of rules that govern experts for the foreseeable future. This is an area where younger attorneys can provide high value in ensuring that the proper procedures and rules are kept in mind based on when a given case was filed and whether that case is in state or federal court. Some key considerations are included below but be sure to review the previous Texas Rule 194.2(f), new Texas Rule 195, and Federal Rule 26 in full.
For state court cases filed before January 1, 2021—under the “old rules”—expert information is disclosed in response to requests for disclosure. However, in cases filed on or after January 1, 2021—under the “new rules”—experts are now governed by their own disclosures (Rule 195), which a party is automatically required to provide instead of waiting for a request from the opposing party. See Tex. R. Civ. P. 194.3. This change allows for the Texas Rules of Civil Procedure to align more closely with the Federal Rules of Civil Procedure.
Under both versions of the Texas Rules of Civil Procedure, an expert’s resume and bibliography must be disclosed, but the new state court rules mirror the federal rules in also requiring at the outset a list of publications within the last ten years and a list of cases where the expert provided deposition or trial testimony in the last four years. Similarly, under the new Texas rules and the federal rules, parties must disclose details of the payment arrangement for the expert’s retention in expert disclosures. The changes to the Texas rules should make expert deposition preparation easier, as parties will have access to more information before the deposition, rather than waiting for the expert to respond to a subpoena duces tecum attached to a deposition notice, where attorneys will often not receive the information until they are in the same room as the expert they are about to cross-examine.
Beware “yes men.” Experts who will promise to say exactly what you want them to say without reviewing any materials, or when there is insufficient information to support the opinion, set you up for failure. Without adequate support for an expert’s opinion, the other side will surely file a Daubert motion. Even if such motion is not successful, opposing counsel can still undermine your expert’s credibility to the jury and torpedo your case theory.
Instead, be honest and encourage honesty. Credible experts will want to work with attorneys who want the truth. While you are looking for favorable opinions, experts whose opinions contain analytical gaps will prompt Daubert challenges. Sometimes, you draw a bad case; an expert’s opinion may confirm that your case is a prime candidate for a quick settlement and the expert can be used to convince your client accordingly.
Due diligence in expert selection includes plugging the names of potential experts into search engines like Google and Westlaw. Transcripts, motions, and orders are widely available, and you can utilize these to evaluate experts’ history, including the types of cases they are retained for, the opinions previously given (including if they have offered an opinion that is adverse to your case), and whether they have been excluded or limited previously. Similarly, when you receive a list of cases in which an opposing expert has previously testified, look up those cases and evaluate the opinions and testimony given. The opposing expert may have previously given an opinion that helps your case, and you will want to bring this up at the expert’s deposition.
Communicating with Experts
Similar to being clear about the scope of retention, attorneys need to be careful to know what rules apply to their case and how those rules govern communications with experts. The newly approved and finalized amendments to the Texas Rules of Civil Procedure now mirror the federal rules in the protection of draft reports and communications between attorneys and experts, unless the communication relates to expert compensation or facts, data, and assumptions provided by the attorney that the expert considered.
Regardless of what rules apply, avoid the desire to overshare and coaching your expert in written correspondence. Instead, schedule a phone call or Zoom meeting to discuss scope, preliminary opinions, or whether a full report is necessary. This is also a great time to discuss the expert’s general thoughts and any additional issues or insight they have to offer. Remember that all documents provided to experts are discoverable, so avoid sharing attorney work product, or you waive privilege. Finally, be sure to keep a running log of all documents, records, and materials provided to your expert. You never know when a question will come up as to whether the expert was provided a certain document, and you will be thankful for a clean and easy-to-read record to double check in a pinch, rather than combing through emails, file transfers, or other correspondence.
Challenges to Expert Testimony
It is never too early to think about Daubert and Robinson challenges. If you haven’t already, read, bookmark, and re-read Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1998). Whether you are going to challenge the opposing party’s experts or defend a challenge to your experts, attorneys should always keep the Daubert framework in mind. Daubert motions are a critical tool regardless of the type of case. Successfully excluding or limiting an expert (or even a strong challenge set for hearing) can force the opposing party to pivot and adjust strategy at an advanced point in the case, encouraging a favorable settlement or giving your client an advantage at trial.
An additional thing to keep in mind is that the new Texas amendments increased the threshold for expedited actions from cases where the amount in controversy was up to $100,000; the amendments have expanded expedited action practice to cases where the claimants seek monetary relief up to $250,000. Attorneys now, more than ever, need to be familiar with the expedited actions process dictated by Rule 169 and expert practice is no different. In expedited actions, parties can only challenge expert testimony as an objection to summary judgment evidence, during trial on the merits, or for late designation, unless specifically requested by the party sponsoring the expert. With more cases likely to be governed by the expedited actions process, attorneys need to keep in mind their avenues for challenging expert testimony and may seek to remove a case from the expedited actions process accordingly.
Other Best Practices
Keep experts informed of pertinent deadlines, scheduling orders, and changes to same as they occur. Like attorneys, experts are busy people, with large caseloads and family obligations. No one enjoys getting a call that something is due when they didn’t know the deadline was imminent. Unnecessary short turnarounds can affect the quality of an expert’s work or their ability to sufficiently review the materials. In addition, some experts charge increased rates for rush jobs—sometimes, there is nothing you can do; you might have just received the file, the disclosure deadline snuck up on you, or you weren’t expecting the opposing expert to designate a certain type of expert. But, if you are able to save your client money and simultaneously reduce the likelihood of a Daubert challenge, do so. Additionally, experts will remember if you continually call upon them at the last minute, and that may affect their willingness to accept new cases with you.
Timing of expert depositions can have a large impact on your case. The Federal Rules of Civil Procedure mandate that if an expert must provide a written report, that expert cannot be deposed until the report is provided. You may want to plan your mediation to occur after expert depositions, so that you can show the other side the weaknesses in their expert’s opinions and credibility and encourage a favorable settlement. Alternatively, it may be in your client’s best interest to schedule mediation before investing substantial time in expert depositions.
Likewise, when preparing scheduling orders, give thought to the expert designation deadlines. While the rules provide default deadlines, scheduling orders can alter these deadlines, and can require parties to put their cards on the table sooner rather than later, so all parties have adequate time to review the expert opinions, take depositions, and file expert motions. Pushing expert designation deadlines closer to trial limits the time available to prepare expert challenges, set hearings on those challenges, and receive rulings on those challenges from the courts. Judges are busy people. If your Daubert motion is set for the Monday before trial, you are less likely to succeed. Even if the court grants your motion and excludes the opposing expert, your client will likely have already incurred expensive attorney time and expert time for trial preparation and will be responsible for fees for subjects the jury will not even hear.
Experts have the potential to make or break your case. Knowledge of how to utilize their expertise to support your case is an essential skill and you should make every effort to develop it. Expert practice provides opportunities for young lawyers to add value to cases and the opportunities to do so are only limited by your creativity. Capitalize on the opportunity and become an expert on your experts.
Alexis Swanzy – Alexis is a commercial attorney at Kessler Collins, P.C. where she handles a variety of litigation and transactional matters. Alexis aims to create long-lasting relationships that will aid in providing personalized advice and solutions for her clients’ needs and goals.
Andrew J. Upton – Andrew is a trial and appellate attorney at Mayer LLP. Andrew advances his clients’ interests through creative and persuasive legal arguments in all types of litigation matters.