Call Your Expert . . . As Soon As Possible

Photo of Jacqueline Leary
Jacqueline A. Leary
Associate, Litigation Department
Published: New Hampshire Trial Lawyers Quarterly
September 21, 2022
Featured Image - Personal and Family Representation

Co-written by: Richard J. Maloney, Maloney & Kennedy, PLLC

How do you add value for your clients?  First, you need to know your limitations.  Second, you need to seek guidance from others when needed.  Experts play a vital role in the litigation process.  Involving an expert early on in your case can save time and money as well as bring peace of mind to you and your client.  An expert also plays a key role in effective presentation of your case in court.

With COVID-19 delaying the date of final hearings and trials, a case that may resolve in under a year is now taking two or more years, which makes temporary hearings even more significant.  In a family law case, the temporary hearing dictates how the remainder of the litigation may unfold.  At the temporary hearing, the Judge may decide who the primary parent is, which spouse pays alimony and/or child support, which spouse operates the family business, and which spouse resides in the marital home.  If you retain expert services early, you can use their advice to assist with earlier hearings, prepare for mediation, and prevent avoidable disasters.

In the context of a family law case, you should consider retaining one of the following experts depending on the specific circumstances of your matter: guardian ad litem, co-parent coordinator, educator, counselor, tax consultant, business and/or real estate appraiser, business valuation expert, computer or digital forensic experts, forensic accounting experts, or vocational experts.

When lawyers have an in-depth knowledge of a client’s business or family background, he or she can be more proactive in advising those clients of upcoming risks because lawyers then know what to look for.

Here are some key steps to develop and foster the attorney-expert relationship:

1. Comprehensively research your expert witnesses. What is their educational background? What articles have they written? Which cases have they participated in before?

2. Interview them before engaging their services.  Do they have experience testifying in trials? Do they have appropriate credentials for the job? Do they have the requisite knowledge, skills, and abilities?  Can they articulate clearly so a lay person can understand?

3. Clear, concise, and consistent communication with experts is vital. You should not go more than a week without checking in with your expert.  Even a quick e-mail status update suffices.

4. Educate yourself about the expert’s findings and testimony. How do the findings impact your case?  Do you have the power to change anything?

5. Review your expert’s testimony before trial or deposition.  This may seem obvious, but preparation is key to success.  Read everything. Prepare expert witness outlines, not questions.  Anticipate evidentiary issues.  Speak with your expert regarding use of effective demonstrative aids.

Expert’s Perspective

The following is written from a financial expert’s perspective but many of the principles apply to other areas as well.

First, consider the various types of issues that may have financial implications.

  • Valuation of a business: In a divorce case, the value of a business may be an issue in property division.  Valuation may also be important in other civil actions, such as breach of contract.
  • Amount of income: In a divorce case, the level of a party’s income is key for alimony and child support matters.  Tax returns are not always the best evidence of income under New Hampshire alimony and child support statutes.  Income may also be a component in tort or other civil cases.
  • Lost profits: Breach of contract, business interference of other civil cases would necessitate a calculation of lost profits (generally, lost revenue is not per se the basis for damage determination).
  • Fraud cases: Sometimes the financial expert is important not only for damage quantification, but also for proving liability.
  • Follow the money: Some cases (including criminal cases) may turn on demonstrating what a party did with the money and thus set the stage for proving motive in a criminal case[1] or illegal behavior in a civil case.

Second, decide whether you want to start with a consulting expert or a testifying expert.  As a consulting expert, the expert can work with the lawyer to evaluate damages.  The lawyer can then decide whether to proceed to use the expert to testify.  In criminal cases, the defense expert may in fact not want to testify, just assistance in discrediting the prosecution’s witness.

Third, retain an expert as soon as possible.  The expert can assist in framing issues in early pleadings.  The expert can also assist in planning discovery.

Fourth, immediately inform the expert of any deadlines.  If there is a time conflict, you will want to be aware as early as possible.

Fifth, be sure to communicate your theory of the case to the expert.  In some civil cases, the facts or the law may mean that the lawyer has a very specific theory of the case.  Before doing a financial analysis, the expert needs to be aware of the lawyer’s theory.

Sixth, be sure the expert has complete disclosure.  However bad a fact may be, the expert needs to know.  In some cases, the fact may actually not be as bad as it appears at first blush.  However, if the expert’s first exposure to the evidence is on cross examination, both the expert and the party (and the lawyer) have lost credibility.

A financial expert can be valuable in devising or assessing settlement offers. A financial expert will be more dispassionate in assessing aspects of a case. For example, in a professional malpractice case, a defendant may be passionate about the issue of liability.  However, the expert may determine that a liability defense is not overly strong but, liability aside, damage is minimal.  This analysis may not initially cool the ardor of a liability defense but will at least put the issue in perspective.

Expert report:  New Hampshire is liberal with respect to admissibility of expert opinions.  None the less, certain rules should be followed:

  • The opinion should be in writing
  • The opinion should be an opinion. A number should generally be a number and not a range.
  • Follow the court rules on disclosure: CV, publications and prior testimony
  • All calculations must be able to be replicated and all numbers should be explained. If a number is in fact the result of a formula, explain the formula.

Finally, the expert and the lawyer should be aware where each is going.  An unexpected question by the lawyer or an impromptu digression by the expert could have unfortunate results.

[1] Mr. Maloney testified for the prosecution in State v. Kim 153 NH 332 (2004) and State v. Saunders 164 NH 342 (2012)