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Sep 21 2016

Looking for the Best Expert Witnesses? Remember Your Employees

September 21, 2016 (Houston)

James SmithBy James Smith – “Environmental Alert” (Schirrmeister, Diaz-Arrastia, Brem LLP)

One of the challenges in much of modern litigation is the portrayal of complex technical information to fact finders, be they judges, juries or arbitrators.  Companies involved in operations that depend heavily on scientific or other technical information, such as refineries, electric utilities, chemical manufacturers, and oil and gas producers, often need to bring or defend claims based on highly technical evidence.  When looking for the best expert testimony, a company’s own employees are often the best choice.

What Makes a Good Expert?

In presenting technical evidence to the fact finder, my experience indicates that two traits seem to be most important.  First, the information and the opinions must be technically correct.  They must be able to withstand claims of failure to use proper methodology or other attempts to strike the testimony as unreliable under Daubert or comparable state authority.  Second, the presentation must appeal to the intuition of the fact finder, in a way that gives the fact finder the “feel” of correctness when hearing the presentation.  In other words, compelling expert testimony appeals both to the analytical and intuitive make-up of the fact finder.

What Is Not So Important?

In contrast, academic credentials do not seem that important.  For example, some of the best experts in my cases, dealing with the operation of a refinery, the performance of a power plant, or the economics of a chemical manufacturing process, have been my client’s employees with bachelor’s degrees in engineering and years of experience regarding the particular facilities.  These engineers and their real world experience have fared well, even when the opposition presented outside “experts” complete with PhDs or other graduate degrees.  Compelling expert testimony is rarely disregarded because an expert with more formal education disagrees.

Neither their lack of graduate degrees nor their status as employees of the client seemed to matter to the fact finders.  What mattered was the credibility demonstrated by relaying technical information in a way that lay listeners could understand.  These engineers had years of practice doing just that to managers, directors, regulators and fellow employees; practice which prepared them well for their testimony.

Use Outside Experts to Complement the Employee Experts

This is not to suggest that outside experts have no role when using employee experts.  Outside experts can complement the employee experts with opinions, from a more theoretical perspective, that the employees used generally accepted methodology in analyzing the data and arriving at their opinions.  Testimony of this type from the outside expert can benefit the case, without having that expert attempt the impossible task of absorbing the knowledge that the employee has gained through years of experience.

Identify Experts Early, Especially Employee Experts

At the early stage of a dispute, companies should consider the expert testimony that will be necessary for their case, and identify those employees likely to be asked to give expert testimony.  My own preference is to treat these employees as “experts” under the applicable procedural rules; disclosing them as experts and having them prepare reports if required or helpful.  Counsel and party representatives should understand the forum’s privilege/confidentiality rules that apply to experts, and keep these in mind when communicating with all experts, both employees and outside experts.

Also, when using employees as expert witnesses, the company needs to appreciate the demands on the employees’ time in order to act as an expert witness in the case, including report preparation, deposition preparation and giving testimony.  Given the demands of litigation, using employees as experts may not actually save money, but saving expense money is rarely a good basis for choosing experts.

Employees often make great expert witnesses when they are the most knowledgeable technical experts regarding a particular facility or its operation.

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