As litigators, you are experts in trying cases. You intuitively know the difference between a motion to dismiss and one for summary judgment. You understand why you need to move for a directed verdict to protect the right to move for judgment non obstante veredicto. You are skilled in the chess match that is typical in litigation—who makes a good witness; how to present your client’s story; in short, what it takes to move the fact-finder. Typically, you are not experts in mechanical engineering, corporate finance or neurology. But litigation today, like so much of life, involves highly technical issues. In many cases, a general knowledge of science or commerce or health care is not enough for an attorney to represent his or her client effectively—the days of Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145 (1854), are gone.
Industry experts provide the technical knowledge that today’s litigators need to represent their clients. Clients can’t always provide the kind of detail knowledge required. Even when they can, getting that information from a client can be problematic for the case down the road and may not be clear enough for the judge or jury. Fortunately, expert witnesses, who are needed anyway to provide technical analysis to the fact-finder, can be that resource. Until recently, however, the potential discovery of attorney communications with experts has been a murky subject. Asking an expert to identify weaknesses in the deposition testimony of an opposing party’s witness would not be helpful if, prior to trial, the expert’s summary was discoverable, allowing the witness to shore up his testimony at trial. Asking a damages expert to analyze the financial ramifications of a variety of settlement alternatives becomes a liability if that expert is required to divulge your client’s acceptable range of values.
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