A joke in forensic circles holds that attorneys, having no sense of the time required to review materials and form an opinion (in addition to whatever the expert’s day job is), will say: “I have an insanity case for you; we go to trial next week.” The joke hides a truth: Attorneys may be coming to you as the third expert, your two unknown predecessors having turned down the case as meritless; however, deadlines have been ticking away unextended. Beyond such specifics, some attorneys may simply be poor planners. They may also have inherited the case from another attorney who had exhausted all of the continuances; consequently, the retaining attorney is limited in what he or she can do.

Experts need to establish clearly that they must have adequate time to review material and discuss and update information as discovery proceeds. The attorney should also be made to understand that regular contact may be required as the opinion develops, as questions arise, and as additional data need to be obtained.

An occasional attorney perceives the issue behind, say, withholding critical data as one of trial strategy and thus justified as part of a plan for mounting the case. The attorney may come to understand the situation better when the expert makes clear that the issue at hand is part of expert opinion formulation. Explicitly defining the matter in these terms may bring clarity and may promote an expertise-based division of labor: The expert works on the opinion and the attorney works on the case as a whole. The attorney has the task of trying to fit the expert’s opinion, if favorable, into the total case strategy with the goal of winning for the client.