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I watched President Obama deliver his speech last evening, and was shocked like all those in attendance when Representative Joe Wilson of South Carolina heckled the President with his emotional outburst.  In at least one article in today’s media, individuals from Wilson’s district supported his actions.  Here’s just one quote – “Yeah, it was rude, but somebody needed to say it,” said Susan… “But” nothing.  It was rude is an understatement.  That was not the form or forum for expressing disagreement with the President’s statements.  Period.

I am not representing that I agree or disagree with President Obama’s policies and strategies, and I firmly believe everyone is entitled to an opinion, but in the context of last evening’s speech with all the country’s political leaders present, I think the outburst showed nothing but disrespect to the Office of the President (regardless of who currently fills that office), as well as our entire political system.

Representative Wilson was entitled to his opinion, but how he chose to express his opinion during the nationally televised speech was unacceptable, and the fact that individuals can support such actions just helps explain why the social climate in America continues to deteriorate.

Children disrespect their parents, students disrespect their teachers, motorists disrespect other motorists, elected officials disrespect the President… and the list continues on and on in this country.  At what point does this train stop and return back in the direction it originated?

Apologies seem to be the solution of choice these days, and in my opinion, apologies aren’t enough.

In litigation, there are two types of experts that can be retained by counsel.  The differences between the two can have a significant impact to retaining counsel’s case.  One major difference is that the “consulting expert” is typically retained by counsel as an “extension” of the law firm to assist counsel with formulating strategy, reviewing documents, and other assistance in resolving the matter.  In general terms, the consulting expert will operate under the attorney’s client privilege, and if properly structured and adhered, the consulting expert will never be disclosed nor will any of the consulting expert’s notes, discussions and materials ever be discoverable.  The “testifying expert”, however, is entirely different, has no privilege, and everything the testifying expert does, writes, and relies upon is fully discoverable (from inception).

In very large cases, there likely will be both consulting experts and testifying experts involved.  However, in smaller cases, the bulk of cases in everyday litigation, counsel may utilize a single expert for both roles, which in essence makes the expert a testifying expert (and everything that has been written, relied upon and produced since inception is discoverable).

Although there is a potential cost savings to the client in using a single expert, there are also risks and disadvantages associated with this practice, as I have been experiencing first hand in recent cases.  As the testifying expert I limit the notes I take, knowing full well that my notes are discoverable.  As I sat through depositions and trial testimony,  I would love to take more detailed notes of issues I heard, to have provided counsel with needed financial direction in the matter.  However, as the “testifying expert” witness, I was frequently prohibited from attending the depositions and portions of trials, and counsel therefore lost the benefits of my background, training and experience in my areas of expertise.  Reading transcripts after the fact no where nearly replaced my ability to write out questions for counsel to ask right during the testimony.

Often new information, or “surprises”, are produced or introduced late in the process, as late as during depositions and trial testimony.  By being able to sit alongside counsel to review the materials and provide questions to ask to legitimize or counter the information could make or break the outcome of the matter.

In my area of expertise I have found this especially true of financial information, such as tax returns, financial statements and other potentially complex transactional information.  In some cases counsel had a great understanding of the financial materials and the implications associated with reported amounts and transactions.  However, in many more cases I have found counsel heavily relied upon my involvement to provide that review and insight.  As the consulting expert one can expand counsel’s knowledge and expertise to ensure a thorough understanding and analysis of any financial information and associated implications.

In the end… I strongly encourage in every matter the consideration of whether it makes sense to engage two experts: one as a “consulting expert” strictly to assist counsel from planning through  final adjudication of the matter; and one as a “testifying expert” should testimony of an expert be required in the matter.  The cost differential may not be as great as one expects, especially if the right experts are engaged.

Ever read an article that simply nailed an issue? The first two paragraphs of James Nealson’s article published in the CT Law Tribune has done that for me, based on my personal experience with litigation cases I have been involved in the last few years.

The common practice of withholding documents and information by opposing parties not only negatively impacts counsel’s ability to adequately prepare and prejudices their case,  it also impacts their experts in the case who need the complete documents in the opposing party’s possession to perform their complete and objective analysis of all the facts in the matter, not just the ones the opposing party choose to produce.  Following months and in some cases years of frustration, cost and energy to gain access to the information known to exist,  it is often provided on the eve of depositions or the trial itself, leaving no time to react to the withheld information.  The withheld information could also have an impact on any report that was issued based upon the limited information actually provided, positively and/or negatively changing the conclusions and opinions previously reached.

From a non-attorney’s perspective, the questions I have are these – why has this become such a pervasive practice?, and what significant consequences can the courts impose when this is identified to stem this growing practice?

Here’s the excerpted two paragraphs from Mr. Nealson’s article:

“Almost all commercial litigators have frequently encountered an uncooperative opposing party who fails to timely comply with document requests in a complete manner.  The requesting party is then forced to spend a significant amount of time, effort and client money analyzing the production to identify “holes,” followed by tedious and expensive letter-writing campaigns seeking to induce voluntary compliance.”

“Once a motion to compel is finally filed as a last resort, the producing party seeks to pull the rug out from under the motion by producing documents on the eve of the court hearing.  In the meantime, the requesting party is prejudiced by having to proceed with its case preparation and depositions without the benefit of the withheld documents.”