Using Experts in Arbitration - Chapter 31 - AAA Handbook on Arbitration Practice - Second Edition
George Ruttinger is a partner in the Government Contracts and International Dispute Resolution Groups of Crowell & Moring LLP. He is in Crowell’s Washington, D.C. office and 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 litigation counsel in Crowell & Moring’s Washington, D.C. office, where he specializes in complex commercial litigation and arbitration matters, frequently working with and writing about experts.
April Ham is a litigation and antitrust associate in Crowell & Moring’s San
Francisco, California office.
AAA Handbook on Arbitration Practice - Second Edition
USING EXPERTS IN ARBITRATION
George Ruttinger, Joe Meadows, and April Ham
In litigation, the basic routine for working with experts involves
several steps. First, counsel selects a witness who can qualify as an expert
under the evidentiary rules and can communicate well to a judge or jury.
The expert must possess sufficient knowledge, skill, experience, training,
or education in the subject matter of the dispute.1 Next, counsel considers
whether to also retain a consulting expert for assistance and to shield all
work product.2 Counsel then asks the testifying expert to analyze the facts
and data and prepare a written report on the opinion. Afterwards, counsel
will prepare the expert to be deposed and to testify at trial. Finally, at trial,
counsel will “qualify” the expert under the applicable evidentiary rules and
present the expert’s opinion on either technical, scientific, or specialized
matters to educate and persuade the trier-of-fact.
Arbitration differs from litigation.3 The proceeding is more informal,
the rules of evidence generally do not apply, and discovery is often
limited.4 Furthermore, especially in complex commercial disputes,
arbitrators usually possess knowledge or experience in the subject matter
of the dispute. As such, arbitration can have advantages over litigation,
including greater opportunities to use and present expert evidence. A
number of these opportunities are addressed below.