In The Attorney-Expert Relationship: Unraveling the Complexity, Peter T. Tomaras writes on his experience as a premises liability expert witness:
“I do not want legal research regarding theories, defenses, etc. I want my liability expert to provide opinions on the facts.” That rebuke came from an attorney who did not appreciate my suggestion that he might litigate his case under contract theory (breach of implied warranty) as well as tort theory. To someone relatively new to litigation support, this underscored a fundamental question: What exactly is the expert’s role?
After all, many “facts” are disputable. Proficient experts should perform thorough investigations, during which we may assemble a wide ranging body of relevant information – some of which may suggest alternative paths for pursuing a case. Competent litigation consultants can help attorneys win and triers of fact decide issues fairly. But some attorneys do not want comprehensive case analysis from their experts. Years after that reprimand, I still encounter ambiguity in attorney expectations. While experts should not presume to instruct attorneys on the law, consulting is what we do. Are we not to be proactive in providing all advice we feel qualified to offer? At the same time, to what extent can we involve ourselves while preserving our objectivity should a case go to trial? It is, in the words of Gilbert and Sullivan, “A seeming paradox!”