When to Get Your Expert Witness

During an interview for the November 2005 issue of "Bullseye-the Experts Rag," Al Jacobs of Greenburg, Traurig explained to Bob Ambrogi that he always tries to get the expert on board in a patent case as quickly as possible. "I want to discuss with the expert his or her views on infringement or noninfringement and validity or invalidity,' says Jacobs. I have my own ideas about the case, but I'm not hiring an expert to read from a script."

However, Jacobs also cautions lawyers to remember that, once they identify an expert as one who will testify, they lose any privilege attached to your prior conversations. "Keep that in mind when working with an expert at the beginning of a case. Don't discuss strategy in detail, because that will be discoverable," he warns.

On the other hand, don't keep your expert in the dark. Laura J. Borrelli, an expert in residential mortgage lending who has testified at many trials, still finds it helpful to understand the lawyer's view of a case's principal theme. Discussing this up front avoids misunderstandings later, when time is tight, she says. Experts also need time to determine if they can support your position, and to set aside time for you from their other professional activities.

Besides, sometimes a lawyer just needs someone to talk to. For those accasions, Jacobs sometimes also hires consulting experts in addition to testifying experts. "You may find someone with a lot of experience in the technology who can provide useful scientific information, but who would not make a good witness or who would not want to testify." With a consulting expert, you retain the attorney/client privilege and are able to discuss the case more thoroughly, Jacobs notes.

And that's one less expert to help the opposing counse, because engaging top-caliber experts early precludes your adversary from doing so. "This is especially important if the expertise is difficult to find," notes on expert referral agency website.