What to do When Your Case Turns into a Lemon

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Every attorney’s nightmare is the case that explodes right at the last minute. You sign a new client, start collecting discovery materials, take depositions thinking that your case is taking shape, until the impossible happens – your case takes a right turn. Most of the time it’s your client who falls apart and short circuits your case. Maybe it’s opposing counsel whose endless delays drag you and your clients through the game of catch me if you can. Perhaps it’s an uncooperative court. I once had a case that was scheduled for trial only to have the judge die. However, for some, it’s your retained expert who now gave you (or perhaps you gave them) a lemon of a case. I can’t help you with a finicky client or opposing counsel, but I can give you a few tips as it relates to experts.

WAITING TOO LONG TO HIRE AN EXPERT

Sadly, many attorneys wait too long before hiring an expert only to find that many of the supporting facts of their case are no longer supporting, but deteriorating their case. I recommend not postponing the presentation of your case to an expert, who might help you identify the lemon quickly. Also, having the right expert can help you build a better case by helping you see the big picture and preparing you to ask better questions of the opposing sides deponents, as well as their expert. Thinking you can go it alone and not hire an expert may work in some cases, but can be a disaster in others. Yes, hiring an expert is expensive and raises the cost of your case, but the alternative may be even more expensive.

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AN EXPERT SLOW TO GET YOU WHAT YOU NEED

This is probably the most common problem with experts. Your report deadline is approaching and you can’t get ahold of them for a report. This is particularly important in Texas where written reports are required by testifying experts. You may also get a weak or abbreviated report from your expert, which fails to establish the basis of your case. Worse yet, you may not get a report at all and have to go it alone.

AN EXPERT WHO SELF-DESTRUCTS & BLOWS UP YOUR CASE

You hire an expert who you thought would strengthen your case, but fails to provide the wealth of education, training and experience you had expected is challenged by opposing counsel and is disqualified. This is particularly bad when the opposing side’s expert stays in the case. So what do you do? Go back to the basics. Keep it simple. The facts of your case haven’t changed, so don’t panic. You may also want to retain a consulting expert who can help re-assemble the broken pieces of your case and prepare you for trial.

AN EXPERT WHO TELLS YOU THAT YOU DO NOT HAVE A CASE

This is actually good if you learn this early in the case, but can be a disaster if you hired an expert late in the case. The best and worse case scenario is the expert who tells you that you have a bad case. This is bad because you have signed on a client with what seemed like a solid case and felt that you could help them, only to learn that their case is too weak to pass the legal muster. However, this is good because you can cut your losses early and move on. As one who has had to break the news to counsel that their case is on thin ground, I know just how disturbing such information can be, but remember law is something that is practiced. The more you learn, the more practice you get and as my dad would always say, “Practice makes perfect!” Russell J. Kendzior

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