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Four Ways an Expert Witness Can Add Value (even when you expect your case will settle before trial)

Updated: Feb 28

                As an expert most frequently engaged on the topic of insurance coverage and bad faith claims, I recognize that I’m an added cost factor.  Thus, I never forget the need as an expert to add value along with the primary deliverable of a prompt, objective, and admissible report.  Below are facets of an expert’s engagement that in my experience add value beyond the eight corners of the expert report.

1.            Insights from expert’s knowledge and experience: A subject matter expert can lend knowledge the attorney may lack. For example, as a young lawyer my client was in litigation with a manufacturer who sought to recover income allegedly lost because its plant was shut down for six weeks, claiming lost sales corresponding to the product volume it could have generated during the suspension of operations. However, our expert forensic accountant raised a new question: “Before the loss, did they run the plant 24 hours a day?”  We followed up and learned that (i) production previously had been limited to 8 hours a day, but (ii) following the loss, the company ran production 16 hours a day and thus had made up all of its lost sales. The expert’s insight reduced a $6 million exposure to a < $100,000 exposure.

2.            Fresh perspective: You’ve worked on this case for a long time.  Yet first impressions tend to persist, while a fact or issue overlooked early can stay hidden because of a mental blind spot.  Moreover, wearing the advocate’s hat can impair a litigator's objectivity. Thus, a fresh look from an objective expert can add valuable perspective that can improve your case and also provide an early warning regarding any weaknesses you may have overlooked.

3.            Thoroughness: The expert may be able to devote time and focus that you cannot in light of your assorted litigation, business development, and management obligations.  As an expert I often spot a fact or issue that the lead attorneys didn’t recognize, likely because of heavy demands on their time.

4.            Brainstorming: Notably, while many corporate clients will not pay for two attorneys in the same firm to confer, it is recognized that the attorney necessarily must consult with the retained expert – and at considerable length.  This affords you the opportunity to have the brainstorming session you’ve been craving. This valuable interaction promises to yield a more refined analysis and stronger legal positions.





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