Testing Expert Evidence℠

When preparing for a construction dispute, counsel always strive to retain the best expert(s) for their case and rely on that expert to present the most compelling analysis that will be persuasive for their client to prevail. This is absolutely the mind-set that is required when entering into any litigation or arbitration. It is not unusual for counsel to convince themselves that they have the best set of facts, the best expert, the best report and testimony to the point that it is hard to believe that there could be a differing opinion or point of view. But how do you, as counsel responsible for trying the case and not the subject matter expert, ensure that your expert's analysis adds value, will withstand the opposing expert's attacks and convince the judge, arbitrator/tribunal, or jury to find for your client?

Do you ever find yourself confronted with any or all of the following nagging questions before the expert's report or prepared testimony is provided to the other side, or before an expert is to be deposed or appear in front of a judge or jury, or “hot-tubbing” with another expert in an arbitration:

  • Has my expert identified in his/her report/testimony, and does he/she have the qualifications, experience and expertise necessary to provide the stated opinions and to withstand any Daubert or similar jurisdictional-law challenges? Has my expert strayed from his/her areas of expertise?
  • Has the expert report/testimony clearly laid out the areas/issues to be evaluated and to which expert opinion is being provided? Does the expert report/testimony provide sufficient factual and analytic evidence to adequately address all areas/issues identified?
  • Does the expert qualify with respect to all of the opinions to be given? Has the expert jeopardized the opinions by over extending into areas that strain the expert's qualifications? Do I need additional experts beyond those already selected?
  • [If the expert is testifying from work done by a team of individuals] Has the expert provided a sufficient basis for relying on the work performed by the team (e.g., did the expert adequately supervise the team; does the team have the qualifications necessary for the work they performed)?
  • Does the expert report/testimony meet the requirements for an independent expert report or will it be viewed as an advocacy piece?
  • Are the opinions and conclusions clear and adequately supported by the documents and analysis? Is the basis for each conclusion fully articulated?
  • Are there aspects of the opinions that cause the expert concern? If so, what are they and how can they best be addressed factually and technically?
  • If the expert report/testimony identifies any facts to be assumed, how, if at all, do the assumed facts affect the opinions being rendered? Has the expert considered the effects of differing facts upon the opinions?
  • Does the expert report/testimony make logical sense or are there gaps in the reasoning, analysis, findings and/or conclusions? Will it be objectively compelling to the decision-maker?
  • Do any analogies withstand technical scrutiny? Are the analogies or the expert's attempt to make the facts or opinions understandable to a lay audience too simplistic and/or do they gloss over important technical issues?
  • Has the description of facts been appropriately separated from opinion?
  • Is each opinion expressed clearly identified as the expert's own formed opinion rather than acceptance/agreement with another expert's opinion?
  • If the expert opinion is based on another expert opinion, how dependent is it on that opinion and how will it be affected if that opinion falls or is discounted?
  • If there are multiple experts, how do I know that they each understand the factual assumptions made by the others, that the factual assumptions are consistent and that all opinions required to support the ultimate computation of damages will be accounted for among the various experts?
  • Does the analysis follow industry-accepted methodologies? If it is unique, will it withstand challenges and cross examination?
  • How can I know whether there are any computational errors in the expert analysis?
  • [If it is a rebuttal report/statement] Has my expert provided a sound technical basis for rebutting the opposing expert's report? Has my expert's detailed knowledge of the facts caused him/her to overlook any high-level problems with the opposing expert's report that will allow the judge, arbitrator/tribunal, or jury to discount the opposing expert's analysis without delving into the detailed disputes between the experts? Is there sufficient latitude in the rebuttal report/statement to permit the expert to address variations which the other side may present?
  • Does the technical report provide a logical basis and causal link to the damages and does the damages report demonstrate how the damages tie back to the technical report?
  • Has the expert quantified damages in a manner that is consistent with the law? If there are evidentiary limitations that affect the quantification of damages, does the expert understand how those limitations may affect the expert's report/testimony?

If you are concerned about any of these questions, you have the same anxiety as most good litigators! Since you are not the subject matter expert, it may be difficult to confidently answer these bedrock questions. In addition, we all know that when one becomes so immersed within the same case for a long period of time, or has read an expert's draft report several times, it becomes difficult to see things that someone else who has no involvement with the case and who approaches the report or testimony with a fresh eye might see, especially if they are a trained expert in the same subjects.

Litigators also know that no matter how qualified their expert is or how good their facts or their expert's analysis are, another qualified expert will claim that the analysis is significantly flawed. Counsel often laments, "I only wish I knew what the other side is going to do with this."

Well, now there is an opportunity for counsel to confidentially have the above questions answered from experienced expert witnesses and current arbitrators. Using the "red-team" model that was first used by the U.S. military, Pegasus-Global had adapted the concept to provide litigators with an objective review of their expert's reports/testimony before the report/testimony is submitted to the court or arbitrator/tribunal.