Part 1: Getting Ahead of the Case: Why Early Expert Involvement Matters
If there is one piece of advice we give to every attorney and business owner who calls us with a dispute, it is this: bring your damages expert in early!
It sounds simple, but in practice, engaging an expert too late is one of the most common mistakes we see in any damages cases. There is a natural tendency to hold off, to wait and see if the case settles at mediation before investing in an expert. We understand the instinct to wait. But it is a gamble that can cost far more in the long run than it saves in the short term.
Here is why.
The Expert Is Not Just a Number Cruncher
A skilled damages expert is not someone who shows up at the end of a case to put a number on the losses. Our work starts long before the damages model is built and the expert report is ever written. In the early stages of a case, we bring a perspective that attorneys and business owners rarely have: a financial lens on the facts of the dispute.
Through this lens, a skilled expert reads both the complaint and the answer carefully and critically, not just accepting one side's version of events. We work to understand the financial landscape of the case before anyone starts asking for documents. This means identifying early on what financial records exist or may exist, where they live, and who controls them. That last question, it turns out, is one of the more important questions in any damages case, and it should be shaping your discovery strategy from day one. We will get into that in Post 2. For now, let’s address the role an expert should play in the discovery stage.
Discovery Is a Window That Closes
A damages expert can start adding value early on in a case. An area where we can provide the most value is in helping counsel craft targeted, financially precise discovery requests before they go out the door. Vague or overly broad document requests often come back with everything except what we actually need, resulting in time spent sifting through unusable information. And once discovery closes, that window is gone.
Beyond document requests, depositions are another area where early expert involvement pays dividends. A damages expert can help counsel identify the right financial questions to ask of fact witnesses while there is still an opportunity to ask them. These questions will ultimately strengthen the damages analysis or allow solid rebuttal opinion. What were the company's revenue projections before the alleged harm occurred? What steps were taken to mitigate the losses? What do the books actually show versus what the client plaintiff or defendant is telling us? These are not questions that attorneys always know how to ask. They are questions a damages expert thinks about from day one.
The Mediation Trap
Perhaps no mistake illustrates the cost of waiting better than what happens around mediation. One of the most common scenarios we encounter goes something like this: a client asks counsel to hold off on retaining a damages expert because they are hoping to settle at mediation. Mediation comes and goes without a resolution. Now the case is heading toward trial, expert report deadlines are looming, and the damages expert is being brought in cold, without having been involved in discovery, without having helped shape the deposition questions, and on an accelerated timeline.
The irony to all of this is that getting us involved prior to and during mediation can actually improve the chances of settling a case. A well-supported damages analysis during mediation gives both sides a clearer, more grounded picture of what is at stake, and helps focus the conversation on the issues that are actually in dispute. We can also be involved in presenting our preliminary findings to the mediator, or sometimes the other side during the mediation. That opportunity to present our well-reasoned analysis is often exactly what moves a mediation toward resolution. Waiting to retain an expert until after mediation fails misses that opportunity entirely. And how can you know what number to go into mediation with if you haven’t had an expert involved?
We acknowledge that cases can and do settle without expert involvement. However, banking on that outcome at the expense of your damages analysis is a risk that is rarely worth taking. The cost of retaining an expert early is almost always less than the cost of the disadvantage created by retaining one late.
The Expert You Wanted May Not Be Available
There is one more risk worth mentioning. The pool of qualified damages experts in any given market is not unlimited. The expert you would have chosen may already be retained by the other side. Conflict checks work both ways, and waiting too long to retain an expert can mean the best options are no longer available to you. Retaining your expert early not only gives you more time to build a stronger analysis, but it also ensures you have access to the expert you actually want on your team.
The Bottom Line
Economic damages cases are won and lost long before anyone steps into a courtroom. The groundwork is laid during the early stages of a case, from the documents requested, the depositions taken, and the assumptions identified and tested. All of it feeds directly into the quality of the damages analysis and the strength of the expert's testimony at trial.
The best time to bring in your damages expert is at the start. Not after mediation. Not when the report deadline is six weeks out. The sooner we are engaged, the better.
Up next: Once we are retained, one of the first questions we ask is a simple one: Does your client control the financial records, or does the other side? It is a question that influences nearly every step of the information-gathering process. We will cover that in Part 2.