When To Retain an Expert in Business Litigation
Experts should be retained as early as possible in the litigation process, taking several points into account: (1) the need for an expert or, if not required, the desirability; (2) the amount at stake in the litigation; (3) the potential for early settlement without the need for retaining experts; and (4) the extent to which the testimony of expert witnesses might play a pivotal role in the case.
The first determination, regardless of which side is being represented, is whether expert witness testimony is required based on the facts and circumstances of the case and the applicable law. As noted in §§10.34 and 10.35 below, expert testimony is required in many instances regardless of any other factors that might bear on whether counsel would want to retain an expert. In these instances, the question is not whether an expert witness is needed but what kind of witness will suit the case needs best. Some considerations bearing on this question are found in §§10.31 – 10.45 below.
When expert witnesses are required, retaining them at the earliest occasion will prove beneficial to the case because experts do far more than merely testify. They can also consult with counsel on other aspects of litigation, including preparing and responding to discovery, determining the need for other experts, and, of course, trial presentation. These considerations should come early in case preparation. In addition, many clients require budgets, formal or otherwise, so that they can determine the cost of the litigation they are facing. Experts, besides being a cost factor themselves, can often provide insight into other areas of the litigation as well.
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