The following article contains guidance for insurance industry veterans thinking about expert witness work and those others who may have started to do this type of work and are still unsure of the best practices.
Performing expert witness services can be an exciting, rewarding and educational endeavor. I spent just short of two decades working within the insurance industry and the remaining three decades providing consulting and expert witness services.
The following article contains guidance for insurance industry veterans thinking about expert witness work and those others who may have started to do this type of work and are still unsure of the best practices. Also, for those litigating attorneys reading this, hopefully, you will find some nuggets of information that will help you get the best expert, and the best out of experts you retain.
It is not unusual for commentators on expert witness work to call it litigation support or even consulting. Make no mistake, when consulting with an attorney on a case, the work is at that attorney's direction, and there should be no concern about expert rules and the guidelines provided here. However, if retained as an expert, there are rules to follow and consequences if they are not adhered to strictly.
Expert witnessing is adversarial. The attorneys on the opposing side will look for mistakes and errors, try to exclude part or all of the opinion(s) and possibly seek to have the court exclude the expert from the judge or jury’s consideration. These can be accomplished through “motions in limine” and “Daubert Challenges”. The expert’s job is to educate the “trier-of-fact” (Judge or Jury) and convince them that your opinion illuminates the issues better than the opposing side can do. The expert needs to be objective and not automatically adopt the retaining attorney’s position and thoughts. An insurance expert witness provides expert opinions on issues pertaining to his specific area of expertise. It is very different from consulting in which tasks are performed for the benefit of the attorney or client.
The Federal Rules of Civil Procedure (V.26.2 (B)) and the Federal Rules of Evidence (Rules 702, 703, & 705) can be used as guiding principles for expert witness work and, in fact, are the rules that must be complied with by every expert when the case for which services are being rendered are venued in Federal District courts. Most state and local courts have adopted these rules in whole or in part. Keep in mind the reporting requirements will differ between different local State and Federal courts. The retaining attorney will be able to give you the appropriate guidance as to what report or work product is necessary for that particular case.
The attorney you are working with will let you know if the other side institutes “Daubert Challenges” or files “motions in limine.” Each of these is an attempt to have all or part of your expert work excluded from the case or you as the expert declared unqualified to opine on the issues. The latter, if successful, could eliminate or severely limit future expert work as attorneys are reluctant to retain experts with such decisions in the expert’s history.
Reports and testimony (e.g., depositions) constitute the sources for an expert’s opinions. Best practices dictate that your report should be organized and deliberate. Planning your report is best and outlining helps with that. Sectioning your report based on the Federal Rules is useful:
- Expert Qualifications
- List of Cases expert provided testimony (4 years)
- Publications by Expert (last 10 years)
- Complete Statement of Opinions
- Facts or data used to formulate the opinion(s)
- Exhibits used for support
If an expert is inexperienced at writing expert reports, it would be prudent to take a professional writing course. There are organizations that specialize in expert training, and even some referral services will provide this type of guidance.
Depositions are a type of “testimony” that an expert may provide in their expert work. The retaining attorney may very well “prepare” the expert usually the day before the deposition. Be sure to be prepared for the deposition before the attorney provides the preparation. Be sure to satisfy any questions and to fully understand how and if there have been any case development that will or will not affect your opinions.
For the deposition, one of the most challenging adjustments an expert has to make is to respond under deposition questioning adequately. Remain calm and professional no matter how worked up the questioning attorney gets. Listen to the question asked and answer only that question. Do not pontificate or bring up related matters. If the retaining attorney objects to a question asked, do not answer the question unless told to do so.
For attorneys reading this article, experts understand fully that the attorney’s purview is the law. The expert’s field is the insurance industry. As there are many areas of law, a single lawyer likely will not know and practice in all areas of the law, different areas of the insurance industry exist, and one expert will not know all areas of the industry. An expert well credentialed in agent/broker responsibilities is likely not qualified to address underwriting or claim questions. As an expert, I have been asked to provide supporting information for a motion in limine. My attorney needed to exclude the opposing agent expert’s opinions on what was clearly a complicated underwriting matter.
Using an insurance expert early in the discovery can assist an attorney with interrogatories and provide insurance industry-specific information to circumvent potential objections and force the opposing side to provide relevant supporting documentation for the expert’s opinion. Please remember that the right expert for a case is not necessarily the expert that is next door.
About the Author Douglas R. Emerick is a former senior executive of an insurance company and is an active expert witness on specialty lines of insurance such as Fidelity, Surety, Directors & Officers, and Specialty E&O. Mr. Emerick is the General Manager of Insurance Expert Network, LLC (IEN); (215) 736-2980.
|This article was originally published in the Spring 2019 issue of CLEW News: A Newsletter from the Coverage, Litigators, Educators & Witnesses (CLEW) Interest Group of the CPCU Society and is shared with permission from The Institutes CPCU Society and CLEW . The Society For Chartered Property Casualty Underwriters. All rights reserved. www.CPCUSociety.org