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The conflict check comes first

Every enquiry about an engagement starts with a conflict check, and the check runs before any discussion of the facts. That order is not a formality. The doctrine that disqualifies an expert is built on confidential information rather than on adverse interests, and the test most courts apply asks two questions: whether it was objectively reasonable for a party to conclude that a confidential relationship existed, and whether confidential or privileged information actually passed. Both must be answered yes before disqualification follows.

Running the check first protects both sides of the conversation. It keeps a candidate who turns out to be conflicted from ever receiving material that would matter, and it keeps the enquiring party clear of the argument that contact was made in order to take an expert off the board.

So the first message is a list before it is a story: the parties in the caption, corporate parents, subsidiaries and affiliates, any insurers or indemnitors, counsel of record, and the product, system, transaction or facility at issue. That list is enough to run the check and rarely tells anyone anything they could not learn from a docket.

What a first message should contain

Alongside the conflict list, six things make the difference between a useful reply and a polite one.

• The forum and the posture. Which court, which stage, and whether the case is in discovery, past the close of it, or in post-trial motions.
• The question. Not the subject area and not the preferred answer — the thing an opinion would have to establish, stated so that a negative answer is a possible outcome.
• The role. Consulting or testifying, and whether that has been decided.
• The record. What exists, roughly how much of it, what format it is in, and what has not been produced yet. Volume and format drive the work more than the question does.
• The dates. The expert disclosure deadline, the discovery cutoff and the trial setting, taken from the scheduling order rather than from the timing defaults in the rules, which apply only where the court has ordered nothing.
• Whether an opposing expert has been disclosed, and on what subject.

That is a page of writing. It requires no attachments, and a candidate who cannot say something useful in response to it will not say anything more useful in response to the file.

What not to send yet

Until the conflict check clears, nothing privileged, nothing confidential and nothing case-specific that a stranger has no business holding. That means no internal assessment memoranda, no mediation statements, no client narratives, no expert reports from the other side, and nothing produced under a protective order to which no one here is yet subject.

The contact form on this page composes a message in the sender’s own mail application rather than transmitting anything to this website, which makes the point mechanical as well as advisory: material typed into it travels by the sender’s own email, to an address that has not yet run a conflict check.

After the check clears and terms are agreed, materials can be sent deliberately and in a sensible order. That sequence is worth keeping for a second reason. Where an expert testifies, the federal disclosure rule reaches the facts or data considered by the witness — a standard that covers material read and set aside as surely as material relied upon — so an organized transmittal record answers at deposition what an unstructured one turns into an afternoon of reconstruction.

What happens after the check clears

If the check is clean, the next conversation covers scope and feasibility: what question is being asked, whether it is answerable on the record that exists or is likely to exist, what would have to be obtained to answer it, and whether the schedule allows the work to be done once rather than twice.

That conversation is also where an honest negative answer belongs. An engagement that should not be taken — because the question sits outside the field, because the available data will not support an opinion to a reasonable degree of certainty, or because the calendar does not permit the analysis the question requires — is better identified in the first week than in the month the report is due.

If the engagement proceeds, terms follow in writing: the designation, the scope, the fee structure, invoicing, responsibility for payment, conflict obligations and document handling. Written terms are not ceremony. They are the record that answers, months later, what the expert was asked to do and by whom.

Timing, and what a schedule needs to say

The single most useful item in a first message is the set of real dates. Expert deadlines are fixed by the court’s scheduling order in nearly every case, and the familiar defaults in the rules are gap-fillers that rarely control. Working backward from the disclosure date usually reveals a shorter runway than it first appears: the report needs a complete record, the record often needs a production or a deposition, and both of those need requesting.

Compression is expensive in a way that is easy to underestimate. A schedule that leaves half the time the work requires does not produce a shorter engagement; it produces a different one, with parallel effort, analysis begun before the record is complete and revised when it arrives, and an opinion defended on a record nobody had time to test.

Consulting and testifying enquiries

Engagements are accepted in both roles, and it is worth saying in the first message which one is contemplated. The two are treated very differently by the discovery rules: facts known and opinions held by a retained expert who is not expected to testify are ordinarily beyond discovery, subject to narrow exceptions, while a testifying expert’s report, materials considered and compensation are disclosable by rule.

Where a matter may need both, the cleanest arrangement is usually two people. Converting a consultant into a testifying witness mid-case should be planned as a decision that exposes the consulting work rather than as a change of title.

Questions that are not about an engagement

Messages from students, researchers, journalists and other practitioners are welcome. Questions about how the framework works — what a rule requires, how a motion is decided, what a disclosure has to contain — can be answered generally, and are frequently the reason a page on this site gets rewritten.

What cannot be answered is anything that amounts to advice on a live matter: whether a particular opinion will be admitted, whether a particular expert should be excluded, or what a particular judge is likely to do. Those questions belong with counsel admitted in the relevant jurisdiction, and no answer to them is available through this site.

What a message here does not create

Sending a message through this page does not create an engagement, a retention, or any professional or confidential relationship. Nothing sent before a conflict check clears and terms are agreed should be treated as protected by that relationship, because until then there is not one.

Correspondence is kept and used to respond to the enquiry and to run and maintain the conflict record. It is not sold, published, or shared for marketing purposes. The privacy policy sets out what happens to it in more detail, and the terms of use and disclaimer describe the limits of what this site is.

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