Brian R. Booker, Esq. Quarles & Brady LLP Phoenix Sonya Kwon Navigant Consulting Los Angeles Edward M. McDonough Alv

1. Selecting "The Right" Testifying Expert and Best Practices for Getting the Most Out of Your Expert During the Pretrial Phase of the LitigationABA Section of Litigation — April 10, 2014 Brian R. Booker, Esq. Quarles & Brady LLP Phoenix Sonya Kwon Navigant Consulting Los Angeles Edward M. McDonough Alvarez & Marsal Phoenix Suzanne L. Montgomery AT&T Services, Inc. Dallas

2. TOPICS: • Selecting an Expert • Expert Qualifications • Due Diligence • In-House Counsel Perspective • Experienced vs. Inexperienced Witnesses • Considering Multiple Experts • Preparing and Developing the Expert Opinion • Documents and Data • Causation Opinions • Damage Theories • Expert Reports • Use of Experts in Addition to Trial Testimony • Common Uses • Discovery and Depositions • Mediation • Arbitration

3. I. Selecting an expert Determine appropriate professional discipline (e.g., accountant, economist, real estate appraiser, engineer, medical expert, etc.) Determine the expert’s qualifications: • Skills • Knowledge • Education • Credentials • Training • Experience • Professional Experience • Testifying Experience • Communication Skills • Style • Competitive Concerns

4. I. Selecting an expert - CONTINUED Due Diligence Regarding Expert’s Background: • Find out ahead of time: • Prior Excluded testimony • Bias/Plaintiff-Defendant • Prior testimony on similar matters • Have you worked with/against opposing counsel/firm/party in the past • Publications/Speeches • Social Media • Firm Website • Contact prior attorneys who worked with/against the expert: • Reputation • Responsiveness • Persuasive communication • Strength/weakness • Communication/testimony style

5. I. Selecting an expert - CONTINUED • In-House Expert: • Advantages for selecting in-house expert from client: • Intimate factual knowledge of the subject matter • Lived through the issue, and less of a learning curve to overcome • More knowledgeable about the bigger pictures issues impacting the business • Sensitive to the potential impact of the testimony on the client’s business operations or other pending litigation • Disadvantages to client as expert witness: • Bias or motive – loyalty to employer • Possible financial interest in the lawsuit (salary/bonus) • Unlikely to have the same academic credentials as a retained expert • May consider having both in-house expert and independent expert

6. I. Selecting an expert - CONTINUED • Experienced Witness: • Brings a range of prior experience which may be valuable • Understands the process • Sensitive to the pitfalls of discovery • May have developed persuasive methods to explain complex technical facts to a jury • Aware of the sense of urgency needed to respond to the unpredictable demands of litigation • Should be more cost effective • Inexperienced Witness: • Shorter track record of prior testimony provides less ammunition for cross-examination • May mitigate the appearance of a “hired gun”

7. ii. PREPARING AND DEVELOPING THE EXPERT OPINIONDocuments and data • Complaint and Response • Counterclaim • Contracts and Agreements • Financial Statements • Management Reports • Business Plans • Budgets and Variance Analyses • Minutes of Board Meetings • Correspondence • Depositions • Price Lists • Customer Lists • Sales Invoices • Sales Commission Reports • Marketing Materials • Customer Surveys • Market and Industry Data • Margin Analysis • Engineering Studies • Alternate Product Designs

8. ii. Preparing and developing the expert opinion – continued Causation Opinions • Establish the connection (or lack thereof) between the cause of the action and the damage suffered –Loss may be attributable in whole or in part to some other cause than the defendant’s actions. • Sufficient facts or data • Product of reliable principal and methods • Principal and methods reliably applied • Causation versus correlation • Can a financial expert establish causation? • Plaintiff’s theory of the defendants’ wrongful conduct • How the plaintiff alleges the defendant’s wrongful conduct caused damage • How the defendant alleges it did not cause the plaintiff’s damages • Whether the plaintiff’s damages could reasonably be expected to have flowed from the defendant’s wrongful conduct • Other factors that may have caused or exacerbated the plaintiff’s damages

9. ii. Preparing and developing the expert opinion – continued • Damage Theories • Quantify damages • Permanent vs. Temporary Loss • Lost profits • Lost value • Actual But For Damage vs. Consequential Damage • Expectation Damages • Reliance Damages • Rescission/Restitution • Punitive Damages • Generally Accepted Damage Methods • Rebut opposing damage calculations – Identify weaknesses, errors, and flaws in the methodology utilized by opposing experts.

10. Iii. Expert reportS • Which experts are required to provide report? • “Specially retained” • What about in-house experts? • Detail/Stands on its own • State court disclosure vs. Federal court • Tells Story • Supported by documents/deposition testimony • Consistent with facts/deposition testimony • Reasonable/common sense • Damage models based upon generally accepted methodologies (reference) • Generally accepted methodologies • Referenced to recognized sources • Counsel should read report in full • 2010 Amendments to FRCP 26 • Role of in-house counsel

11. iV. Use of Experts in addition to Trial Testimony • Expert witnesses can provide assistance beyond their expert testimony, including: • Providing insight into industry/business issues • Identifying sources of financial information • Helping in development of interrogatories and interpreting answers • Investigating damage assessments • Identifying strengths and weaknesses of the case • Analyzing causation • Identifying individuals to depose • Preparing deposition questions • Assisting in mediation and other settlement negotiations • Supporting dispositive motions • Preparing exhibits and demonstrative evidence • Non-testifying expert can consult with counsel, including in-house expert • Competent expert witnesses are critical to complicated cases. Even if a case doesn’t go to trial, a credible expert can assist in evaluating the case and settling the case for your client.

12. ii. Use of Experts in addition to Trial Testimony – continuedMediation • Alternative Damage Calculations • “What If” Analysis • Defend Approach • Attend Mediation

13. ii. Use of Experts in addition to Trial Testimony – continuedArbitration • Expert Testimony • Rebuttal Testimony • Consulting • Different Rules for Discovery

14. Top 20 List FOR DEPOSITION • Read their report beforehand • Review their workpapers • Have your expert read report and provide comment • Find areas of agreement with your expert • Find areas of disagreement • Do your homework on their area of expertise (standards, etc.) • Have your expert attend deposition • Ask short questions • Understand assumptions and facts used • Ask them what their opinions are early on • Listen to their answers • Be humble • Do not argue • Do not cut them off • Understand documents relied on • Do not tip your hand • Ask intelligent questions • Do not wing it • Forget the hypothetical unless…. • Do not ask open-ended questions on cross