How Experts Can Best Support Legal Strategy Development
One of the most fundamental tasks for a lawyer is to establish a strategy in each case. Once the facts are understood, a lawyer weaves this together with legal theories to sketch out how to present the story of how their client was harmed or injured. These early exercises lay the basis for the big strategic decisions like whether to fight, settle, or keep options open. Expert insights on strategy also assist lawyers’ development of early negotiation posture and case narratives.
Supporting an attorney during early case processes involves helping to bulletproof their selected strategy and story. Your professional expertise and analysis of industry standards of care—plus the best practices currently used in similar circumstances—will be crucial. Here, we’ll walk through the essential case stages where lawyers will be looking to you to provide expert insights and critical thinking as they work to strengthen the case’s preparations.
The first thing you’ll set your sights on is understanding the case theory. This is the basis for all expert work on a case. Read all provided documents to understand how the attorney intends to use the case facts in a narrative that proves the required legal elements but also to begin your professional analysis. Are the assertions made reasonable interpretations of the science as you know it? Does the chronology of facts match up with your review of the records? Give the attorney feedback on how the theory generally holds up, given the facts, context, and technical realities of your specialty field that play a role in the case.
It is crucial that you point out any errors or problems with how the lawyer has sequenced the case story’s facts. To do this, you might provide the lawyer with your summary of the chronology of events and point out problem areas. Your experience and review might reveal accidental misuse of specialized terminology or an unintended flaw in how the attorney has used technical, scientific, or medical points in their arguments. The lawyer is counting on you to fill their knowledge gaps during case theory development.
Standards of Care
One of the biggest areas where experts help mature case theories is in their knowledge of industry standards. You will be called upon to articulate the relevant standards for the industry or field at issue in the case. An attorney will rely on your expertise to explain the relevant standard and discuss the extent to which players in the case did or did not comply with it. Beyond the precise definition of the relevant standards, your analysis should discuss the best practices professionals in that industry or profession use when providing similar services or products.
For example, if you were retained by plaintiff counsel in a medical negligence case related to cardiac surgery, you would make sure the case theory and narrative correctly articulate this specific standard of care. You’d help the attorney analyze whether the accused surgeon had the correct certifications to perform the surgery. You’d also look at how many surgeries this doctor had performed and whether the necessary nursing, anesthesiologist, and technical professionals were present in the operating room. Your review should also discuss the best practices that experienced cardiac surgeons and respected hospitals employ to uphold the standards with post-surgery ICU infectious control protocols and follow-up monitoring. Without your insights on these specific medical standards, an attorney might keep a faulty assumption in their case strategy, which could ultimately seriously jeopardize success down the road.
Checking All Angles
A good expert will get creative in inspecting a case theory to uncover areas that need more work. One way is to work backward—instead of starting at the beginning, work your way back from the conclusion to see if the argument is really airtight. Of course, it also works to start from the beginning of the presentation and work through each sequential decision to see if you, as the expert, would have arrived at the same conclusion. It’s not a bad idea to use both approaches—work backward and forward to bulletproof a theory.
It’s also beneficial to investigate alternative angles. Experts that develop an approach to determining if a party’s actions were reasonable or not can blow a case open for the attorney. Because you are a specialist with deep knowledge, you might be in an excellent position to propose an alternative analytical approach that will help the lawyer have a competitive edge. Don’t be shy about suggesting new variations and alternatives during case strategy development—your expertise was brought onboard for a reason.
Consult and Cite Industry Literature
Lawyers can’t be experts in all aspects of every case. That’s why they hire experts. Your ability to find relevant industry literature and analyze them to surface key points for the case is extremely valuable to attorneys. It could take weeks for an attorney to read and absorb technical literature that an expert could digest and interpret in just a few hours. An expert with detailed knowledge of the subject matter can efficiently find the cogent points in a literature sea.
For example, in a class action where the plaintiffs allege that a manufacturing plant’s leak of toxic chemicals harmed a community, a lawyer would likely hire an environmental toxicology expert. Such an expert would know where to find the relevant literature on certain chemicals’ standards and health risks. Their specialized knowledge puts them in the best position to efficiently review the literature and draw conclusions to support the case theory. They may even find unhelpful conclusions that the attorney would want to know about as well, in case their opposition attempts to take this approach. Your analysis and insights may well be the key to a successful case outcome.
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