BY Spencer Cresswell
Expert strategy in defense litigation is a dynamic process that evolves significantly from the initial pleadings to the trial stage. Understanding how this strategy adapts can provide critical insights for litigators aiming to leverage expert witnesses effectively throughout a case’s lifecycle.
At the pleadings stage, the primary objective for defense attorneys is to lay a robust groundwork for the case. Experts can be instrumental in crafting motions to dismiss or in shaping affirmative defenses. Their input aids in anticipating the plaintiff’s arguments and identifying potential weaknesses. Expert affidavits or declarations can be appended to motions to provide a preliminary challenge to the opposing party’s claims.
As the case progresses to discovery, the role of experts becomes more pronounced. Defense teams rely on expert witnesses to dissect the plaintiff’s evidence and identify inconsistencies or gaps. This phase is crucial for developing a comprehensive understanding of the technical aspects of the case. Experts can assist in formulating interrogatories, requests for production, and deposition questions that are strategically designed to elicit revealing information from the opposition.
Experts also play a pivotal role in deposing opposing experts, where their insights can inform the line of questioning. Furthermore, defense experts may be deposed themselves, necessitating thorough preparation to ensure their testimony remains consistent, credible, and unassailable.
During motion practice, particularly in motions for summary judgment, expert testimony becomes vital. Experts can provide analyses and reports that support the argument that there are no genuine disputes of material fact. Their testimony may be used to demonstrate the implausibility of the plaintiff’s claims, thereby potentially resolving the case without the need for a trial.
Defense attorneys must ensure that their expert testimony is robust enough to withstand Daubert or Frye challenges. This involves meticulous preparation and a thorough understanding of the relevant scientific or technical principles.
In the pretrial phase, experts contribute to refining the case narrative. Their analysis helps to reinforce the defense’s theory of the case and address any evolving strategies from the plaintiff. Experts may assist in developing demonstrative evidence that succinctly communicates complex concepts to the jury.
Pretrial conferences and hearings often necessitate expert involvement to address any pending motions in limine, which seek to exclude prejudicial evidence. Experts can provide crucial insights into the potential impact of such evidence and suggest strategies for counteracting it.
At trial, the expert’s role shifts from strategy development to direct advocacy. Defense experts are called to testify, presenting their findings and opinions in a manner that is both accessible and authoritative to the jury. Their testimony must be carefully orchestrated to align with the overarching defense strategy and resonate with the jury.
Cross-examination of opposing experts is another critical aspect of trial strategy. Defense experts can provide valuable support, suggesting lines of questioning that highlight weaknesses in the opposing expert’s methodology or conclusions.
After the trial, the impact of expert testimony is assessed in post-trial motions and potential appeals. If the verdict is unfavorable, expert analysis may be used to argue for a new trial or to highlight errors in the admission or exclusion of evidence. Conversely, if the outcome is favorable, expert testimony might be leveraged to defend against any appeals by the plaintiff.
The evolving strategy from pleadings to trial underscores the critical role of expert witnesses in defense litigation. Their contributions are integral at each stage, from shaping initial defenses to articulating complex issues at trial. For defense teams, the strategic deployment of expert witnesses is not merely advantageous but often essential for success.
Spencer serves as Vice President of Account Management, where he leads ExpertConnect Litigation Support’s Business Development activities. Spencer especially enjoys helping clients find highly specific and specialized experts in patent litigation matters. Prior to joining ExpertConnect, Spencer worked in international government relations focusing primarily on the defense and homeland security industries.
