LAST MONTH, THIS COLUMN OUTLINED the opportunities and concerns that are present whenever a lawyer engages an expert for trial preparation or testimony in court. This month we delve into the nitty-gritty of creating and managing an expert's notes, documents, reports and other written materials in a way that reduces the likelihood that the other side in a lawsuit can use or abuse the materials to its advantage.
Typically, opposing counsel who obtain such materials from a testifying expert through discovery try to undercut or discredit an expert's opinion by finding inconsistencies between early drafts and notes and the expert's final report or testimony on the witness stand.
What makes this tactic unfair is that conscientious experts, consultants and advisors (whether or not they later become witnesses) begin their study and inquiry without necessarily having a predisposition about the results. Despite their previous experience with, say, environmental or siting issues for landfills, they desire to approach a proposed project with a certain intellectual detachment. After all, each site varies in its physical advantages and challenges; proper landfill design is not accomplished by an indifferent recycling of plans and drawings from another project.
A consultant learns about a case over time. He or she may not know or may not discover key information until late in the process. Early notes or draft reports may not reflect consideration of important factors. That's why a lawyer who engages an expert consultant will likely insist that, except with legal approval, the consultant not prepare any draft opinion or report and not share any opinion, report or notes with any person. Drafts, notes and opinions shown to or discussed with others are discoverable.
Whenever such opinions and reports appear, they tend to bear the following heading in bold upper case type: PRELIMINARY DRAFT PREPARED ON THE BASIS OF LIMITED INFORMATION AND TENTATIVE ASSUMPTIONS. SUBJECT TO CHANGE. Similarly, notebooks, journals and individual pages are usually stamped: INDIVIDUAL NOTES PREPARED FOR PERSONAL USE ONLY. SUBJECT TO CHANGE AS ADDITIONAL OR CLARIFYING INFORMATION AND DATA BECOMES AVAILABLE. Using these disclaimers helps undermine successful cross-examination of the expert based on an earlier writing. Indeed, the federal courts allow a lawyer to ask the presiding judge to have the headings read to the jury during cross-examination by opposing counsel.
An expert consultant also will be asked to keep copies of all documents — both hard and electronic — that he or she creates, receives or uses as a reference during the engagement, and to provide the lawyer with a copy of all such materials. This practice significantly reduces the chances that important items will be lost.
Lawyers do their best to be vigilant during the many months — sometimes years — of pre-trial preparation and to make the process go smoothly. Nevertheless, experts need to be aware that litigation breeds many unintended and unfortunate happenings.