Expert Witnesses in Web Accessibility Cases (Part 3)

While we're talking about testifying expert witnesses, I should mention a distinction that you'll see a lot of litigating attorneys making-- the distinction between testifying and non-testifying expert witnesses. The bottom line is simply this: if an attorney retains an expert witness to testify at trial, prior reports and communications with that expert witness are discoverable, but if the expert witness is not called to testify, then the opposing side can't discover anything about that expert witness.

To non-lawyers, this all-or-nothing approach may seem really strange but it is based on two different ideas: attorney work product doctrine and open discovery. In the case of attorney work product, courts generally recognize a privilege against forcing disclosure of research conducted by an attorney in preparation for litigation. The idea that I've always heard is that we want attorneys to be diligent in researching their cases-- and if an attorney could just take advantage of their opponent's research, it would tend to make attorneys less diligent in preparing for trial. So, if an attorney hires an expert to review a case and render an opinion, that should be shielded from discovery. So this encourages attorneys to hire experts to investigate their cases and render honest opinions.

On the other hand, if an attorney wants to present an expert witness's testimony or report at trial, then an entirely different set of concerns takes over. For instance, what if that expert had previously communicated grave misgivings about the case but those concerns were left out of the report? Or what if that expert witness had rendered the opposite opinion in a similar case? The rules of discovery in litigation tend to be very generous-- and information that reduces the credibility of an expert's opinion at trial certainly should be discoverable.

These policy concerns lead to the distinction between testifying and non-testifying experts that I mentioned above. Is it a perfect system? Heck no. For instance, an attorney with a rich client could shop among several experts until she finds one that is willing to side with her side of the case-- and all the negative opinions from the experts she didn't hire will never be disclosed to the opposing side. While it's not a perfect system, it's the system we've got. And clever attorneys know how to play that system to their advantage. In a nutshell, here's the game strategy that seems to work really well in web accessibility cases on the defense side:

1. Perform a Limited (Inexpensive) Review First. Have an expert quickly review only the plaintiff's allegations and verbally report if the barriers identified by the plaintiff are real and substantial. If your expert says that the plaintiff's allegations are not true or the identified barriers have easy workarounds, remind your expert not to write anything down (yet) and push hard against the plaintiff to back down and either drop the case-- or settle on favorable terms. If the plaintiff doesn't back down, this will be your testifying expert. On the other hand, if your expert says the plaintiff's allegations are true, accept that the plaintiff caught you, learn from your mistakes, and settle quickly.
2. Hire a Second Expert to Give You a Much More Extensive Report. At this stage, you have a favorable (oral) report from your testifying expert. Now, hire a second expert to thoroughly review your site and give you a written report. This will be your non-testifying expert, who can give you a candid review of all of the barriers on your site. If this review comes back favorably, congratulations-- you have one of the few cases worth fighting. If not, accept that you will likely need to settle the case down the road.
3. Prepare Your Expert Witness Report. Assuming the plaintiff hasn't backed down, have your testifying expert from Step 1 prepare an expert report and remind her not to look at anything else on the site (see below). The only reason this step usually comes after Step 2 is due to the fact that you will usually want to put off formally designating your expert witness and submitting your expert witness report until the last possible minute.

So why do I like this approach? First, the quick (unwritten) report in Step 1 should be pretty inexpensive-- likely less than $1,000-- and it gives you a snapshot of short-term risk and whether you should try to settle quickly. If this report comes back negative, the plaintiff probably has pretty strong case. Settle quickly and learn from the experience. The report in Step 2 gives you a clearer view of long-term risk either from other plaintiffs or from the same plaintiff if they amend their complaint or sue you again. If this comes backs negative, you'll still want to settle but you can push back a bit against the plaintiff and (hopefully) get them to relax their terms based on the weaknesses of the case that you found in step 1. The second reason why I like this approach is that the full report (from Step 2) is needed by customers for reducing risk-- and having it prepared this way shields it from discovery. Customers come to us frequently for this kind of report because they know it's critical to long-term accessibility and I urge them to get their attorneys involved to help ensure it isn't discoverable in the future. But, if you're in litigation anyway, it is a great opportunity to use the attorney work product privilege in your favor.

Of course, sometimes you have to switch this strategy up. For instance, if the expert you wanted to hire as your testifying witness in step 1 becomes tainted from coming across other barriers in the site, you'll need to find a new testifying expert. Also, these strategies really only work on the defense side.