Using Experts in Arbitration - Chapter 20 - AAA Handbook on Arbitration Practice
George Ruttinger is a partner and chair of the Government Contracts Group in the Washington, D.C., office of Crowell & Moring LLP. He specializes in contract litigation and counseling. He has represented clients in state and federal courts, arbitration proceedings, mini-trials, mediations, and federal administrative agencies.
Joe Meadows is a counsel in Crowell & Moring’s Washington, D.C. office, where he practices commercial litigation.
In litigation, the basic routine for working with experts involves several steps. First, counsel selects one or more experts who can communicate well to a judge or jury and qualify as experts under the evidentiary rules. Typically, this means that experts must possess sufficient knowledge, skill, experience, training, or education in the subject matter of the dispute. Next, counsel considers whether to retain consulting experts to shield work product and attorney-expert communications. Counsel then asks the expert who will testify to prepare a report on the opinion, but to limit the number of drafts and other written exchanges because of liberal discovery rules. Afterwards, counsel will prepare this expert to be deposed and to testify at trial. Finally, when the trial takes place, counsel will “qualify” the expert under the applicable evidentiary rules by asking certain questions and then soliciting the expert’s opinions on various technical or scientific matters to educate the uninformed trier-of-fact.
Arbitration differs from litigation in a variety of ways. The proceeding itself is more informal, the rules of evidence generally do not apply, and discovery is limited.4 Furthermore, especially in construction and commercial disputes, arbitrators usually possess experience in the field of the dispute and technical knowledge of the subject matter. For these reasons, arbitration has many advantages over litigation, one of which is that it offers greater opportunities to use and present expert evidence. A number of these advantages and opportunities are addressed below.