Every day, in courtrooms across Canada, expert witnesses are called to testify in litigation involving complex technical issues. Their testimony is a staple in civil actions over construction projects, medical malpractice, insurance claims, intellectual property and product liability. However, those same experts tread a narrow line between providing an authoritative opinion – one that a trial judge or jury can rely upon in reaching a verdict – and being an advocate for the party that retains them.
How counsel selects, retains and instructs an expert witness can be a delicate matter. So can the interplay between the external litigator and the in-house lawyer as it relates to the expert. The in-house lawyer has a unique contribution to make in selecting an expert and maximizing his effectiveness, but in-house counsel also needs to know when to defer to the litigator.
> Similarities and Differences between Provinces
Canadian courts, whichever the province, have a long-standing tradition of restricting witness opinions to experts. The corollary is that they expect those experts to be objective professionals rather than advocates for the side that hires them.
Ontario formalized the requirement in 2010, when Rule 4.1.01 was added to the Rules of Civil Procedure. This rule insists that experts “provide opinion evidence that is fair, objective and non-partisan.” It also stipulates that this duty to assist the court outweighs any obligation the expert has to the party that hires them.
Where Ontario differs from Quebec and Alberta is in having codified this requirement. Now, when an expert report is served in Ontario, it must include an “Acknowledgement of the Expert's Duties.” In this form, the expert declares that he or she will provide opinion evidence that is “fair, objective and non-partisan” and only within the area of their expertise. The expert also acknowledges that their duties to the court prevail over any obligations to the party that has engaged them.
> “We're a couple of years out now, and we're starting to see some of the impact of the rule,” says Robin Linley, a partner at Blake, Cassels & Graydon LLP who specializes in product-liability litigation. “In the case law, you can see an increasing trend of the courts exercising a gatekeeping role — vetting experts to ensure they are discharging those duties. But I think the rule codified a lot of what counsel for both plaintiffs and defendants already knew — that experts were not intended to be hired guns.”
In Quebec, the requirement that expert witnesses be impartial and independent is long-standing. While not spelled out in a Code of Conduct, this standard has been reinforced by court decisions that have disallowed expert opinions when the expert witnesses were unable to meet that test. “The use of expert witnesses in Quebec is almost exactly the same as you would see in Ontario or other common-law provinces,” says Michel Sylvestre, senior partner of Norton Rose LLP in Montreal, who specializes in aviation litigation.
Similarly, the expert's declaration of impartiality and independence that is required in Ontario is not part of the Rules of Court in Alberta. “What Ontario requires the expert to swear to is assumed in Alberta,” says Munaf Mohamed, a partner at Bennett Jones LLP in Calgary, who specializes in corporate/commercial litigation with a heavy financial-fraud component. “So when I'm instructing an expert witness, I make it very clear that they are not to be an advocate for my client's cause, but are to give an impartial inference based upon the set of facts that I've asked the expert to assume or have provided.”
> Selecting among Experts
Despite the courts' insistence on the independence of experts, shopping for sympathetic expert witnesses is widespread. “It would be surprising if it were the other way around,” says Sylvestre. “Most of these experts have published and have a view on various areas of their expertise. If you want to defend a certain point of view, you would be ill-advised to retain an expert who regularly publishes papers to the opposite effect. He's going to be cross-examined. If you convince him to say the opposite of what he's been publishing for years, you're begging for trouble.”
In-house counsel usually compiles a list of suitable experts. Sylvestre and the in-house counsel would interview these experts as a joint effort, but the final determination of whom to retain is made by the company lawyer. “Are they in the best position to do so? Could this practice be frowned upon? I don't know, maybe — but that's the way it's done.”
Similarly, the in-house lawyer decides how many expert witnesses to present in court. “Obviously, we have a large influence on this,” says Sylvestre, “but for large clients, they call the shots. And it's done not just by controlling the budget, it's done directly.”
Mohamed notes that in-house counsel at large companies, because they are dealing with cases across the country, have a good sense of the best experts in various areas. So they become involved at the outset in the selection process. “I've had in-house counsel come with me to interview experts,” he says. “We'll interview, say, three experts, and I'll make a recommendation to the client. Generally, but not always, the in-house lawyer will discuss the choice and approve it.” Sometimes, however, they prefer one of the other experts — one they've retained previously who already understands the client's business.
Julie Desrosiers, a patent litigator at Fasken Martineau DuMoulin LLP in Montreal, tries to keep the number of expert witnesses she engages to a minimum. “If you have two experts on the same subject, sometimes they might contradict each other,” she says. “You try to limit the number of experts to one per issue, or sometimes one expert is sufficient for the whole litigation. This should always be discussed with the in-house counsel; he's the one who always should decide.”
> Letter of Engagement
When it comes to actually engaging and instructing the expert, however, the balance shifts. “The in-house counsel will have a say in the matter, but I insist on controlling that,” says Sylvestre. The mandate letter “is a crucial part of the expert testimony process, and I insist on doing that myself. You need to be very careful about not leading the expert in a way that can be considered unethical. You have to be careful to ask open-ended questions. You have to be careful to give your expert full latitude to give a genuine opinion, not a directed opinion.”
Mohamed sees a particular role for the in-house counsel with respect to the engagement letter. “Things such as limitations of liability, fee arrangements, maintenance of privilege — those are typical issues that the in-house counsel would be involved in.” This is because Mohamed often engages forensic accounting experts and “standard of care” experts in litigation over professionals' negligence.
“What the in-house counsel will do is look at the fee structure and say, ‘No, this is not acceptable. Here's what we typically would pay.' They will look at the limitations of liability that many of the accounting firms [engaged as experts] try to build into their engagement letters. They're trying to disclaim any liability, even for negligence, which doesn't sit well with clients. So the in-house counsel will negotiate what the limit of liability would be should the work of the expert cause damage to the client.”
While the in-house counsel may be involved in aspects of the letter of engagement, there is a key reason for having the external litigator issue the letter: it can help preserve litigation privilege over the expert report if it is decided not to call the expert at trial. “The general rule is that, if you retain an expert to give you an opinion but you don't elect to call him at trial, you don't have to disclose his report to the other side,” says Stephen Morrison, a partner in the construction law group of Cassels Brock & Blackwell LLP. “It's considered to be privileged because it's in contemplation of actual or expected litigation.”
Sometimes, however, a company will retain an expert to evaluate the strength of its position even before a law suit is contemplated. Consider a situation where three reports from three different experts are commissioned, but only two of the opinions favour the client. In that event, the client wants to ensure that the unfavourable report does not lose privilege and fall into the hands of the other side.
“Outside litigators would therefore normally recommend that in-house counsel not be the one to retain the expert witnesses,” says Morrison. It is preferable to have that done by outside counsel, who is retained based on the expectation of litigation. “When I write a retainer to an expert, I make it explicit right in my retainer that this opinion is being sought in contemplation of actual or expected litigation.”
Theoretically, the in-house counsel could make the same point if they were providing the letter of engagement to the expert. “But when it's in my file,” says Morrison, “I feel I have a greater ability to defend it from disclosure, if I've been retained as litigation counsel. The in-house counsel can write the same thing, but he may have a more difficult time convincing a court that, although he put those words on the retainer, he was really obtaining this report in contemplation of litigation.
“This is because companies often request expert opinions for investigative purposes rather than in contemplation of litigation,” says Morrison. “Then when litigation arises, they try to cloak the report under the litigation privilege umbrella because they don't like the opinion they got.”
> Preparing the Expert's Report
In-house counsel has a major role to play in facilitating the expert's gathering of information for the expert report. The in-house lawyer is the expert's point of contact within the company, and is responsible for granting access to key company documents and employees. In IP litigation, says Desrosiers, “you look not only at the patents but at the whole context in which the invention was made. This comes from internal documents, reports and research. In-house counsel is better placed to gather this information. He can ensure that the expert relies on an accurate set of facts to render his opinion.”
The expert's draft report is reviewed by both the outside lawyer and the in-house counsel, likely in that order. For both lawyers, that is a delicate process. “Sometimes the external counsel will try to work with the expert to simplify things so that, when the judge reads the final report, he understands it,” says Desrosiers. “When the report is close to being finalized, it should be sent by the litigator to the in-house counsel — but not necessarily before that point.”
If the in-house counsel were to be involved from the first draft, says Desrosiers, “they might have to work on it for weeks, and they don't want to do that.” But in-house counsel should definitely be involved in any revisions before the expert's final report is filed in court. “They have the internal knowledge from the company and sometimes from the inventors, as well, so their input is very important.”
Mohamed agrees. “Typically, the expert's draft report comes directly to me. I forward it to the in-house counsel, but if it's very rough, I advise him to let me get another draft turned. That minimizes the time they have to spend on it.”
It's acceptable for in-house counsel or the external litigator to work with the expert to eliminate technical jargon from the draft report. It is even within bounds to challenge the expert's assumptions and point out any misinformation. But there's a line that must not be crossed.
“It's not that external counsel or in-house counsel shouldn't talk to the expert,” says Sharon Vogel, a partner in the construction, engineering, surety, and fidelity group at Borden Ladner Gervais LLP. “But anything they say or any letters they write to the expert may well be produced in the litigation. You have to be careful not to tell the expert what you want, especially when giving the expert instructions and when reviewing draft expert reports.”
The case law in Ontario suggests that the revision of an expert witness's draft report, based on the suggestions of either lawyer, is fraught with risk, says Vogel. She cites Ottawa (City) v. TKS Holdings Inc. as indicative of how strict the Ontario courts have become in cracking down on perceived lawyer influence over expert witnesses.
In this case, following the collapse of a building, an engineer was retained to provide an expert report on whether the actions by the City of Ottawa and others were appropriate. These actions were described as “logical and predictable” in a draft of the report but only as “predictable” in the final report. “The original use of the word ‘logical' lends support to the CBO's decision as being reasonable and based on objective advice,” wrote Justice Beaudoin. “It is ironic that … deletion of that word now gives a more partisan flavour to his report.”
“The removal of a couple of words, on the request of counsel, caused the court to question the impartiality of the expert report,” says Vogel. Although this was not the only reason the report was questioned, Vogel says this case illustrates that the courts are taking a firmer view on communications between experts and both external and counsel and. “Some lawyers now have gone as far as not reviewing the draft reports of an expert. It's not a wise thing to try to get an expert to change their conclusions.”
That's especially true in light of evolving disclosure expectations around experts. These expectations are creating potential new land mines for external and in-house lawyers. Ontario's adoption in 2010 of Rule 53 clarified what must be included in an expert's report. “Now, the expert is required to include the instructions” they received, says Linley. “Previously, there was some ambiguity in the case law as to what was discoverable in that regard.” Rule 53 can force an expert to produce their letter of engagement, “especially if that letter set out specific instructions or requests to review and analyze particular issues that are raised in the proceeding.”
Alberta, meanwhile, is struggling with the issue of whether or not to require full disclosure of an expert's file, including draft reports, to the other side. Rulings have gone both ways in the province, says Douglas Mills, a partner at Burnet, Duckworth & Palmer LLP in Calgary who does corporate/commercial litigation. “I think we tend more to protect the background files than to disclose them.”
Nevertheless, it's not unusual for Alberta judges to order the production of experts' files. Mills cites a key ruling by the Alberta Court of Queen's Bench that linked full production of all written material, in paper or electronic form, in the possession of an expert witness, to their status as an independent, impartial professional.
In Guitierrez v. Jeske, Justice Moen wrote: “If Dr. Apel is to be accepted at trial as an expert, there must be no indicia that the doctor is an advocate for the Plaintiff. … Her role must always remain as an objective professional person who is there to assist the Court. Therefore, everything that she has in her possession, all of her notes, all of her emails, all of her test data, and all of her draft reports must be provided to the Defendant … forthwith.”
As the scope of disclosure around expert witnesses widens, both in-house counsel and external litigators will find it more important than ever to exercise caution in how they try to invoke the expert's credibility in the service of the client's interests.
Tips for In-house Counsel on Dealing with Expert Witnesses
In-house counsel's role in the process should be clear from the outset. Here is what in-house counsel should, and should not, do when working with outside counsel to prepare for litigation
> Decide who the most credible expert witnesses are and how many will be hired, with the advice of the litigator, and the particular areas of expertise on which they will testify.
> Approve the litigator's recommendation on which expert to hire, but possibly override the litigator's selection if a different expert has been retained previously who knows the client's business better.
> Let the external lawyer issue the letter hiring and instructing the expert witness. This establishes that the expert's opinion has been sought in contemplation of litigation and, if not entered as evidence, is still subject to litigation privilege.
> Be involved in preparing the engagement letter, with particular emphasis on the fee to be paid to the expert, the expert's limitation of liability and restrictions on the expert's use of the engagement for self-promotion.
> Be the main point of contact for the expert at the company, and facilitate access to the research, documents and employees that the expert will draw upon in preparing the draft report.
> Challenge the expert on assumptions and on the accuracy of facts, but do not pressure the expert to change findings purely for the client's benefit.
> Exercise caution with respect to any emails or other written communication to the expert witness, as the expert's file may be subject to disclosure to the opposing side.
How counsel selects, retains and instructs an expert witness can be a delicate matter. So can the interplay between the external litigator and the in-house lawyer as it relates to the expert. The in-house lawyer has a unique contribution to make in selecting an expert and maximizing his effectiveness, but in-house counsel also needs to know when to defer to the litigator.
> Similarities and Differences between Provinces
Canadian courts, whichever the province, have a long-standing tradition of restricting witness opinions to experts. The corollary is that they expect those experts to be objective professionals rather than advocates for the side that hires them.
Ontario formalized the requirement in 2010, when Rule 4.1.01 was added to the Rules of Civil Procedure. This rule insists that experts “provide opinion evidence that is fair, objective and non-partisan.” It also stipulates that this duty to assist the court outweighs any obligation the expert has to the party that hires them.
Where Ontario differs from Quebec and Alberta is in having codified this requirement. Now, when an expert report is served in Ontario, it must include an “Acknowledgement of the Expert's Duties.” In this form, the expert declares that he or she will provide opinion evidence that is “fair, objective and non-partisan” and only within the area of their expertise. The expert also acknowledges that their duties to the court prevail over any obligations to the party that has engaged them.
> “We're a couple of years out now, and we're starting to see some of the impact of the rule,” says Robin Linley, a partner at Blake, Cassels & Graydon LLP who specializes in product-liability litigation. “In the case law, you can see an increasing trend of the courts exercising a gatekeeping role — vetting experts to ensure they are discharging those duties. But I think the rule codified a lot of what counsel for both plaintiffs and defendants already knew — that experts were not intended to be hired guns.”
In Quebec, the requirement that expert witnesses be impartial and independent is long-standing. While not spelled out in a Code of Conduct, this standard has been reinforced by court decisions that have disallowed expert opinions when the expert witnesses were unable to meet that test. “The use of expert witnesses in Quebec is almost exactly the same as you would see in Ontario or other common-law provinces,” says Michel Sylvestre, senior partner of Norton Rose LLP in Montreal, who specializes in aviation litigation.
Similarly, the expert's declaration of impartiality and independence that is required in Ontario is not part of the Rules of Court in Alberta. “What Ontario requires the expert to swear to is assumed in Alberta,” says Munaf Mohamed, a partner at Bennett Jones LLP in Calgary, who specializes in corporate/commercial litigation with a heavy financial-fraud component. “So when I'm instructing an expert witness, I make it very clear that they are not to be an advocate for my client's cause, but are to give an impartial inference based upon the set of facts that I've asked the expert to assume or have provided.”
> Selecting among Experts
Despite the courts' insistence on the independence of experts, shopping for sympathetic expert witnesses is widespread. “It would be surprising if it were the other way around,” says Sylvestre. “Most of these experts have published and have a view on various areas of their expertise. If you want to defend a certain point of view, you would be ill-advised to retain an expert who regularly publishes papers to the opposite effect. He's going to be cross-examined. If you convince him to say the opposite of what he's been publishing for years, you're begging for trouble.”
In-house counsel usually compiles a list of suitable experts. Sylvestre and the in-house counsel would interview these experts as a joint effort, but the final determination of whom to retain is made by the company lawyer. “Are they in the best position to do so? Could this practice be frowned upon? I don't know, maybe — but that's the way it's done.”
Similarly, the in-house lawyer decides how many expert witnesses to present in court. “Obviously, we have a large influence on this,” says Sylvestre, “but for large clients, they call the shots. And it's done not just by controlling the budget, it's done directly.”
Mohamed notes that in-house counsel at large companies, because they are dealing with cases across the country, have a good sense of the best experts in various areas. So they become involved at the outset in the selection process. “I've had in-house counsel come with me to interview experts,” he says. “We'll interview, say, three experts, and I'll make a recommendation to the client. Generally, but not always, the in-house lawyer will discuss the choice and approve it.” Sometimes, however, they prefer one of the other experts — one they've retained previously who already understands the client's business.
Julie Desrosiers, a patent litigator at Fasken Martineau DuMoulin LLP in Montreal, tries to keep the number of expert witnesses she engages to a minimum. “If you have two experts on the same subject, sometimes they might contradict each other,” she says. “You try to limit the number of experts to one per issue, or sometimes one expert is sufficient for the whole litigation. This should always be discussed with the in-house counsel; he's the one who always should decide.”
> Letter of Engagement
When it comes to actually engaging and instructing the expert, however, the balance shifts. “The in-house counsel will have a say in the matter, but I insist on controlling that,” says Sylvestre. The mandate letter “is a crucial part of the expert testimony process, and I insist on doing that myself. You need to be very careful about not leading the expert in a way that can be considered unethical. You have to be careful to ask open-ended questions. You have to be careful to give your expert full latitude to give a genuine opinion, not a directed opinion.”
Mohamed sees a particular role for the in-house counsel with respect to the engagement letter. “Things such as limitations of liability, fee arrangements, maintenance of privilege — those are typical issues that the in-house counsel would be involved in.” This is because Mohamed often engages forensic accounting experts and “standard of care” experts in litigation over professionals' negligence.
“What the in-house counsel will do is look at the fee structure and say, ‘No, this is not acceptable. Here's what we typically would pay.' They will look at the limitations of liability that many of the accounting firms [engaged as experts] try to build into their engagement letters. They're trying to disclaim any liability, even for negligence, which doesn't sit well with clients. So the in-house counsel will negotiate what the limit of liability would be should the work of the expert cause damage to the client.”
While the in-house counsel may be involved in aspects of the letter of engagement, there is a key reason for having the external litigator issue the letter: it can help preserve litigation privilege over the expert report if it is decided not to call the expert at trial. “The general rule is that, if you retain an expert to give you an opinion but you don't elect to call him at trial, you don't have to disclose his report to the other side,” says Stephen Morrison, a partner in the construction law group of Cassels Brock & Blackwell LLP. “It's considered to be privileged because it's in contemplation of actual or expected litigation.”
Sometimes, however, a company will retain an expert to evaluate the strength of its position even before a law suit is contemplated. Consider a situation where three reports from three different experts are commissioned, but only two of the opinions favour the client. In that event, the client wants to ensure that the unfavourable report does not lose privilege and fall into the hands of the other side.
“Outside litigators would therefore normally recommend that in-house counsel not be the one to retain the expert witnesses,” says Morrison. It is preferable to have that done by outside counsel, who is retained based on the expectation of litigation. “When I write a retainer to an expert, I make it explicit right in my retainer that this opinion is being sought in contemplation of actual or expected litigation.”
Theoretically, the in-house counsel could make the same point if they were providing the letter of engagement to the expert. “But when it's in my file,” says Morrison, “I feel I have a greater ability to defend it from disclosure, if I've been retained as litigation counsel. The in-house counsel can write the same thing, but he may have a more difficult time convincing a court that, although he put those words on the retainer, he was really obtaining this report in contemplation of litigation.
“This is because companies often request expert opinions for investigative purposes rather than in contemplation of litigation,” says Morrison. “Then when litigation arises, they try to cloak the report under the litigation privilege umbrella because they don't like the opinion they got.”
> Preparing the Expert's Report
In-house counsel has a major role to play in facilitating the expert's gathering of information for the expert report. The in-house lawyer is the expert's point of contact within the company, and is responsible for granting access to key company documents and employees. In IP litigation, says Desrosiers, “you look not only at the patents but at the whole context in which the invention was made. This comes from internal documents, reports and research. In-house counsel is better placed to gather this information. He can ensure that the expert relies on an accurate set of facts to render his opinion.”
The expert's draft report is reviewed by both the outside lawyer and the in-house counsel, likely in that order. For both lawyers, that is a delicate process. “Sometimes the external counsel will try to work with the expert to simplify things so that, when the judge reads the final report, he understands it,” says Desrosiers. “When the report is close to being finalized, it should be sent by the litigator to the in-house counsel — but not necessarily before that point.”
If the in-house counsel were to be involved from the first draft, says Desrosiers, “they might have to work on it for weeks, and they don't want to do that.” But in-house counsel should definitely be involved in any revisions before the expert's final report is filed in court. “They have the internal knowledge from the company and sometimes from the inventors, as well, so their input is very important.”
Mohamed agrees. “Typically, the expert's draft report comes directly to me. I forward it to the in-house counsel, but if it's very rough, I advise him to let me get another draft turned. That minimizes the time they have to spend on it.”
It's acceptable for in-house counsel or the external litigator to work with the expert to eliminate technical jargon from the draft report. It is even within bounds to challenge the expert's assumptions and point out any misinformation. But there's a line that must not be crossed.
“It's not that external counsel or in-house counsel shouldn't talk to the expert,” says Sharon Vogel, a partner in the construction, engineering, surety, and fidelity group at Borden Ladner Gervais LLP. “But anything they say or any letters they write to the expert may well be produced in the litigation. You have to be careful not to tell the expert what you want, especially when giving the expert instructions and when reviewing draft expert reports.”
The case law in Ontario suggests that the revision of an expert witness's draft report, based on the suggestions of either lawyer, is fraught with risk, says Vogel. She cites Ottawa (City) v. TKS Holdings Inc. as indicative of how strict the Ontario courts have become in cracking down on perceived lawyer influence over expert witnesses.
In this case, following the collapse of a building, an engineer was retained to provide an expert report on whether the actions by the City of Ottawa and others were appropriate. These actions were described as “logical and predictable” in a draft of the report but only as “predictable” in the final report. “The original use of the word ‘logical' lends support to the CBO's decision as being reasonable and based on objective advice,” wrote Justice Beaudoin. “It is ironic that … deletion of that word now gives a more partisan flavour to his report.”
“The removal of a couple of words, on the request of counsel, caused the court to question the impartiality of the expert report,” says Vogel. Although this was not the only reason the report was questioned, Vogel says this case illustrates that the courts are taking a firmer view on communications between experts and both external and counsel and. “Some lawyers now have gone as far as not reviewing the draft reports of an expert. It's not a wise thing to try to get an expert to change their conclusions.”
That's especially true in light of evolving disclosure expectations around experts. These expectations are creating potential new land mines for external and in-house lawyers. Ontario's adoption in 2010 of Rule 53 clarified what must be included in an expert's report. “Now, the expert is required to include the instructions” they received, says Linley. “Previously, there was some ambiguity in the case law as to what was discoverable in that regard.” Rule 53 can force an expert to produce their letter of engagement, “especially if that letter set out specific instructions or requests to review and analyze particular issues that are raised in the proceeding.”
Alberta, meanwhile, is struggling with the issue of whether or not to require full disclosure of an expert's file, including draft reports, to the other side. Rulings have gone both ways in the province, says Douglas Mills, a partner at Burnet, Duckworth & Palmer LLP in Calgary who does corporate/commercial litigation. “I think we tend more to protect the background files than to disclose them.”
Nevertheless, it's not unusual for Alberta judges to order the production of experts' files. Mills cites a key ruling by the Alberta Court of Queen's Bench that linked full production of all written material, in paper or electronic form, in the possession of an expert witness, to their status as an independent, impartial professional.
In Guitierrez v. Jeske, Justice Moen wrote: “If Dr. Apel is to be accepted at trial as an expert, there must be no indicia that the doctor is an advocate for the Plaintiff. … Her role must always remain as an objective professional person who is there to assist the Court. Therefore, everything that she has in her possession, all of her notes, all of her emails, all of her test data, and all of her draft reports must be provided to the Defendant … forthwith.”
As the scope of disclosure around expert witnesses widens, both in-house counsel and external litigators will find it more important than ever to exercise caution in how they try to invoke the expert's credibility in the service of the client's interests.
Tips for In-house Counsel on Dealing with Expert Witnesses
In-house counsel's role in the process should be clear from the outset. Here is what in-house counsel should, and should not, do when working with outside counsel to prepare for litigation
> Decide who the most credible expert witnesses are and how many will be hired, with the advice of the litigator, and the particular areas of expertise on which they will testify.
> Approve the litigator's recommendation on which expert to hire, but possibly override the litigator's selection if a different expert has been retained previously who knows the client's business better.
> Let the external lawyer issue the letter hiring and instructing the expert witness. This establishes that the expert's opinion has been sought in contemplation of litigation and, if not entered as evidence, is still subject to litigation privilege.
> Be involved in preparing the engagement letter, with particular emphasis on the fee to be paid to the expert, the expert's limitation of liability and restrictions on the expert's use of the engagement for self-promotion.
> Be the main point of contact for the expert at the company, and facilitate access to the research, documents and employees that the expert will draw upon in preparing the draft report.
> Challenge the expert on assumptions and on the accuracy of facts, but do not pressure the expert to change findings purely for the client's benefit.
> Exercise caution with respect to any emails or other written communication to the expert witness, as the expert's file may be subject to disclosure to the opposing side.
