Hiring an Expert Witness – Use Them to Evaluate and Prepare Your Case

Chuck Modell March 25th, 2021

You are a trial lawyer.  You have an important case on behalf of a franchisor or franchisee.  You have a world of experience in trial law, having handled hundreds of cases, perhaps many of which have been in the franchise area.  You are considering hiring an expert witness to provide testimony on some of the factual issues in the case to help the trier of fact understand your client’s position.  Since you cannot be an expert in all aspects of every case you take, particularly if you are a general trial lawyer who handles many different substantive matters, consider hiring your expert early in the case, and using them first as a consultant, to help you review your case and develop a trial strategy.

Your Expert Can Help You Develop Your Case and Anticipate Issues

Since your expert witness will, by definition, have detailed knowledge of the subject matter, retaining that expert to review your case early in the process may result in the expert identifying cogent points that you may not have fully appreciated, either to help develop your case or to anticipate positions that will be taken by the other side. Besides having specialized knowledge on the points on which you want their testimony, your expert should know best practices of other franchisors that may help you, whether you represent a franchisee and want to show that this franchisor did not comply with those practices, or you represent a franchisor and need to explain how practices that may have caused damage to this franchisee are important to other franchisees in maintaining the quality standards of the system, and thus also important to protect consumers. A franchise consultant who has worked with hundreds of franchise systems, or a transactional franchise attorney who has written and edited hundreds of franchise disclosure documents, may also be able to point out errors or problems with assumptions you have made on how franchisors operate and/or the nuances of franchise laws that can be very complicated.

Hiring an expert witness early in the process and using them to help you analyze and develop your case, may also help you in another aspect of the case.  We all know that most cases settle prior to trial.  If your expert witness can help you identify strengths and weaknesses in your position, and thereby help you better analyze your best- and worst-case scenarios, that assistance should be invaluable to you in settlement negotiations.

Get the Most Out of Your Expert Witness

You have the trial experience, but in the 21st Century, none of us can be experts in every substantive area we encounter in our practices.  A professional who spends 90% of his or her time with franchisors, disclosure documents, and dealing with franchise relationships, should know the substantive area in their sleep.  Since you are paying them for their expertise, use it in every way you can!  And, if you hire the person early enough in the process, you have the added benefit that if the expert is not all that you had expected, you can let them go and retain a new expert before any permanent damage is done to your case!!