 What
is an Expert Witness:
An expert witness
is someone who possesses special training or experience that enables the trier
of fact (jury or judge) to ascertain something that is beyond their skill or
experience. Which simply means that the judge or jury lacks the special
training or education to determine the truth or falsity of a particular issue. This can mean
someone like an attorney or doctor who has special training and experience or a
mechanic that has special experience is called upon to assist them in reaching
their verdict. There is no limit to the type of
experience that can be treated as a specialty. My special training is in the practice
of law that coupled with my over 28 years of experience gives me the ability to
hold myself out as an expert witness. A mechanic may be qualified as an expert
because of their training and experience as well.
When will you need
an expert witness? You will probably need an expert witness when you decide to
look into whether or not your previous attorney committed malpractice. For
example, did your previous attorney not listen to your needs? Did they ignore
presenting evidence that was important to your case? Did they fail to
prepare themselves and you adequately for trial? If they did, and you feel that
you have been damaged by their negligence, then you are entitled to compensation
for their negligence. You will need to contact a malpractice attorney that will
handle the case for you. In addition, you will need an expert witness to testify
at trial that your previous attorney was negligent.
As an expert
witness, I have to review the complete case file and look at exactly what
documents were filed, what the issues were and whether or not your previous
attorney acted within the standard care for family law attorneys of equal
experience. If they acted properly, then I will tell you, if they didn't I will
tell you that too. Then it is up to you to determine whether or not you should
pursue a malpractice case against your prior attorney. Of course, I am only
hearing one side of the case and if I heard the other side, it may have an
impact on the outcome. However, it is virtually impossible to do this as
most defense attorneys would instruct their client not to talk to me. Which
means that I must use the case files and what you tell me about your case in
order to evaluate it.
I am usually
retained to testify as an expert on the issue of liability. Which means that I
testify as to whether or not your previous attorney's actions met the standard
of care that average reasonable attorneys would use in the same or similar
circumstances. How does one go about determining whether or not your
attorney acted reasonable? First I interview the client, in order to determine
whether or not they had reasonable expectations. That allows me to know if you
have a case or if you are just unreasonable. If you are simply unreasonable then
you probably do not have a case. On the other hand if you acted reasonable and
had reasonable expectations then you most likely have a case. The reason why I
equivocate is simply because despite your reasonable expectations, your attorney
may have acted within the standard of care and merely had an unfavorable
outcome. The only way to tell the difference is to evaluate your case.
Second I
investigate the file to see what has been filed and what the pleadings say. I
also review what the court has said in it's rulings, with an eye towards the
rational for it's rulings. This tell me a lot about what the Court thought about
your case and whether or not they were fair in their rulings. In anticipation of
being useful to lawyers seeking to find an expert witness, I have prepared the
following article which may have useful information for lawyers. It may also be
useful readings for clients who are searching the internet in hope of procuring
an expert witness. In any event, I hope that you will find the information
useful and informative.
I. ENGAGING THE EXPERT
A. Engage As Consultant And Possible Witness.
If possible you
should engage experts first as a consultant and afterwards you determine
if the expert will testify at Trial. If the determination is made to retain the
expert, then you should be ready to disclose the identity of the
consultants as witnesses who will testify at time of trial. The key here is to
realize that as long as the expert is a consultant, his work product is
confidential and not discoverable. When the expert's name is
disclosed as a potential witness in the matter, the prior work product becomes
subject to discovery. Discovery can take place through written interrogatories,
notice to produce or by deposition.
B. Describe to the Expert the Exact Subject Matter The Expert Will Be Asked To
Express Their Opinion Upon.
You should be
prepared to explain exactly what subject matter that you expect the witness to
render an opinion upon. Your attorney should be prepared to explain in detail to the
expert witness exactly which issues they expect the expert to address.
Many of times your attorney will be hesitant to release information to the expert.
This is because all information communicated
to the expert is discoverable. In this type of case, your attorney should limit the
focus of the expert testimony but you should also keep in mind that for the
expert's testimony to be credible, they must be reasonably well-informed on
any and all issues in the case which relate to or form the basis of the opinion
that will be ultimately testified to by the expert.
C. The Expert should clearly Understand That Your Adversary has Discovery
Rights.
The expert needs to understand that his file is completely discoverable.
Following are important considerations which your attorney and the expert should keep
in mind at all times. All documents contained in the expert's discovery file should be
restricted to those which
your attorney and the expert do not object to discovery by the opposing counsel. The expert
should never commit to writing preliminary opinions,
impressions, or thoughts, especially if those thought are candid. Everyone
should be aware that putting preliminary opinions, impressions or other thoughts
in writing makes them discoverable.
D. How To Find An Honest Expert.
Hire the expert first as a consultant and then decide whether
to use him or her at trial. This may result in an additional expense, but it may
save you a great amount of trouble and money later on. Avoid hiring experts who want to direct the
entire case or those which will not disagree with you. Remember that everything which is shown to your expert becomes discoverable. As a result, much
of counsel's case could easily be subject to discovery by virtue of an overly
aggressive expert attempting to review any and all items relating to the case.
On the other hand, if the witness is experienced and they need to know something
you had better be prepared to share with them while they are still a consultant.
That way you can jettison them and hire someone else and keep your secret a
secret. But one way or another you should tell your expert that you do not
expect him to be a whore for you, you expect him to testify truthfully.
2. PREPARING YOUR EXPERT TO GIVE AN OPINION
A. Actual Preparation of the expert.
As a general proposition, you
should only give the expert the documents that counsel
wants discovered. Of course this is a generality, and can easily be overcome by
having the client or the attorney outline the problem area without showing the
expert any documents.
B. You Must Keep Track rack Of What Documents The Expert Has Reviewed.
You and your
attorney must know what documents the expert has reviewed or consulted enough material to provide a credible basis
for his or her opinion and to prevent disclosure of case written material.
3. PREPARING THE EXPERT TO BE DEPOSED OR CROSS-EXAMINED
A. Preparation of Witnesses
Of course the opposing counsel will attempt to illicit inconsistent testimony
which will undermine the expert's credibility on the key
opinion. All witnesses, and particularly an expert, should be told not to
exaggerate the truth. They should rely only upon the facts which can be proven, and
not to overstate their opinion. The preparedness of the expert may
significantly affect opposing counsel's estimate of the persuasiveness of the
expert, Which, of course, will determine their evaluation of the potential for success in the case.
It goes without saying that the expert
should not argue with opposing counsel, unless of course the opposing counsel is
lying and your attorney is asleep. There are rules and then there are
exceptions.
All witnesses, including all experts, should be advised of the following
rules regarding answering questions:
(1) Listen
extremely carefully to the entire question and do not answer the question until
you are sure that you understand what is being asked of you. All witnesses
including the expert, should be
reminded that many attorneys will deliberately ask misleading questions and that
the witness should not attempt to answer a question unless the meaning is
completely understood. The expert should refuse to answer ambiguous questions. They
should also avoid answering any question which mischaracterizes
any prior testimony or misstates the facts.
(2) All witnesses should
be instructed to wait for a brief time before beginning their
answer to the question. This allows their attorney the opportunity to object and allows
the expert the opportunity to fully consider and formulate a complete answer to the question.
All witnesses should be reminded that they
should not allow opposing counsel to proceed at a rapid fire rate. They should
take their time before answering any question.
(3) All witnesses should be reminded that
they should not guess at the
answer to a question.
(4) All witnesses should be reminded to
directly answer the question that is presented
and to answer it as briefly as possible.
(5) If a witness,
including the expert, becomes aware of any mistake in their
testimony, they should correct it before the end of the deposition after
conferring with their counsel. The expert should, immediately request a recess and
should advise counsel of their mistake. Together, counsel and the witness should
agree upon the best course of action to correct the record.
(6) All witnesses should fully review any document about which
they are asked
before answering any questions pertaining to such document. The witness,
especially the expert, should
not assume that they are already sufficiently familiar with the document.
It is possible that there are more than one version of the document and for that
reason the witness should carefully verify that the version presented is the one
that they are already familiar with. In family law cases it is not uncommon for
a party to prepare many versions of the same document, which may or may not
actually be the one that was filed with the court.
(7) All witnesses, especially the expert, should
reject any questions designed to cause them to answer beyond their area of expertise.
B. Preparation Unique To Expert Based On Expected Lines Of Questions
Experts should be prepared to deal with the following types of
cross-examination:
(1) Challenges upon
their qualifications.
(2) Challenges upon the basis of their opinion. The expert should be
conversant with all of the facts upon which the opinion is based. They should know which facts are
significant and which are insignificant. In the same vein, they should be ready
to admit that a change in the facts would necessitate a change in their
opinion. They should also be ready to describe, in detail, any and all of the considerations
that they used in formulating their opinion.
(3) Challenges based upon hypothetical or changed facts. This is an area where
the expert should focus with counsel prior to the deposition. Counsel and the
expert witness should collaborate with each other concerning each of the
salient key facts to ascertain exactly what changes in the
opinion would have to be made in order to invalidate the opinion.
(4) Various attempts to get the expert to agree with some or all of the premises
proposed by the opposing counsel in order to validate the opponent's case or of
the testimony by the opponent's expert.
The expert should be made fully aware prior to cross-examination of the key
issues involved in the opposition's case. The expert should be advised
that if they are forced to agree
to such a key proposition, this may very well damage the viability of his or her own
opinion and the overall success of the case. If this is necessary, then the
expert should review is own opinion and it's viability before testifying.
Where it is possible, the expert should
be prepared to adequately avoid admitting any key premise or proposition of the opposition's
case or of the opposition's expert testimony.
4. DEPOSING YOUR OPPONENT'S EXPERT
Deposing your opponent's expert can be one of the most important parts of
your trial preparation. If you follow the method described below, it will also
be one of the most effective ones.
1. Before the Deposition.
Before you can take the deposition of your opponent's expert you must find
out who he is. Your local rules will be useful in assisting you.
When you notice the other side's deposition, you should include a document
request. In addition to the discoverable reports and writings that were
requested in the demand for a witness exchange, you should ask for at least the
following:
1. Any and all documents relating to any communication between the
expert and opposing counsel, including such things as engagement letters.
Discovery of this material is best reserved to the actual deposition where you
can ask the witness in front of the opposing counsel. You should observe their
facial expressions and body language when answering your questions in
determining the veracity of the answers.
2. Any and all documents reflecting any communication relating to the
actual engagement,
including any communications with witnesses and documents reviewed by them.
3. Any and all documents reflecting or relating to any preliminary opinions or
conclusions and the basis for their opinions. You should also ask if they
considered the opinion of your expert in forming their opinion.
4. Any and all documents consulted or relied upon by the expert in connection with
the engagement including those he consulted or relied upon in forming his
preliminary or final opinions.
5. Any and all documents relating to his educational, employment, and professional
history and any other documents reflecting or relating to his qualifications to
testify. Include Curriculum Vitae as well as any information involving published
articles.
6. Any and all copies of all professional
or other publications to which he has written or
contributed. Include requests for information that he uses to bolster his
preliminary or final opinions.
7. Any and all documents reflecting or relating to other cases in which he has
testified as an expert, including any documents, such as transcripts, that
reflect the substance of his current testimony, the terms of his engagement, the court
in which the action was pending, or the outcome of the case.
8. Any and all other documents relating to the engagement, the opinions he expects to
give, or the opinions he was asked to consider giving.
Before the deposition, you should learn as much as you can about
the opposing counsel's expert, his area of expertise, and the potential weak spots in his
previous opinions. Your own expert is one source of such information but you should not
limit yourself to any one source. Another source of information can be found in
the opinions of expert's that have testified against him in the past. You can
mine the jury sheets for such information.
Is it better to try to take
the deposition of your opposing counsel's expert before or after that of your
own expert? One school of thought is that if
your expert goes last, your opponent will have had the benefit of seeing what a
really good deposition of an expert looks like. He will also have a pretty good
idea of your theories to help him prepare for his deposition of your expert. But
if he has done his homework, he will already know this anyway. The second school
of thought is that your own expert will have the benefit of knowing what the other
side's expert said and can avoid any pitfalls that you uncovered during the
deposition of their expert. In addition, it may help you to develop lines of
inquiry.
In the deposition, your goals will be to exhaust the witness's
qualifications, his preparations to form an opinion and his opinions. In addition, you
will explore with him all the areas that you expect to cover with your own
witness, get any admissions you can, and explore any possible sources of bias.
This may be harder than you think especially if your witness isn't really ready
yet.
You should exhaust the witness's qualifications by first getting a narrative
dissertation setting forth all of the qualifications and experiences that the expert
believes qualify him to give an opinion in your case. Look for differences
between the facts of this case and situations with which the witness has had
experience. You should end up with a list of qualification for this case with
which the witness is unfamiliar or inexperienced. You can then use these
admissions to exclude the witness's testimony or attack his credibility at trial
with proper questions.
In addition, you
should look for differences between the kind of opinion that the witness seeks
to give at trial and the kind of opinion that the witness is required to form in
his own work. The goal with this kind of questioning is to
limit the areas of the witness's expertise to exclude some or all of the areas
material to the case.
After you exhaust
the witness's qualifications, you do the same thing with respect to the
witness's preparation to render an opinion. You want to know everything the
witness did and should not leave this area until you get a satisfactory answer
to your closeout questions. Then, get specific about what was not done. Ask the
witness whether it would have been helpful to have done specific additional
items of preparation. Ask whether the results of the additional procedures might
have changed his opinions in any respect. Find out why or why not. Then ask the
witness open ended questions about what additional preparation or procedures
might have been helpful to him. Find out the reasons why or why not. Find out
why any admittedly valuable procedures were not done.
2. Next you exhaust the witness's opinions. Find out all the opinions and
conclusions he has reached or was asked to reach.
For each opinion:
1. Determine
exactly all the facts upon which their opinion is based. Find out the
basis, if any, for those facts. Ask whether relevant alternative facts might
result in a different conclusion. Find out why or why not.
2. Determine the
witnesses degree of confidence in each of their opinions in an
attempt to distinguish between solid conclusions and guesswork or
speculation. This can be ascertained in two ways:
a. If the witness admits that some of his opinions, conclusions, or assumptions
are less than secure, his opinions will carry less weight. Determine is you are
dealing with his preliminary or
final opinion.
b. If the witness claims an
overly ambitious degree of confidence in his opinions,
he may hurt his own credibility.
3. Ask the witness all the questions you will or might ask your own
expert.
His opinion on many matters may support your theories and will be far
more convincing on these points than those of your own witness. For each answer
that contradicts your own expert or theory:
1. Frame the nature of the disagreement,
with precision.
2. Find out whether the contradictory opinions are based on different
assumptions. If so, ask whether the expert's opinion would change if he accepted
the same facts as your expert. Ask him what other changes in the facts might
change his opinions. If there are no facts that could change his opinion, or he
says that obviously material facts wouldn't affect his opinions, he won't be
very credible. If he admits that certain facts would change his opinion, maybe
you can prove those facts at trial and turn him, in effect, into your witness.
3. Find out whether there is more than one school of thought in the community
of experts. If so, see if you can get the hostile expert to admit that there is
a substantial body of thought that supports your position.
During the course of completing the above lines of questioning, you should
have gotten most of the useful admissions that could be obtained concerning the
expert's expertise, preparation, opinions, and assumptions. In addition, try to
get admissions concerning the expertise of your own experts and the reliability
of any treatises, tests, or other sources of information upon which you intend
to rely.
Next, you should ask the witness about the documents. Start by asking how the
documents he brought with him or provided through counsel were gathered or
selected. Ask about each category of document you requested and ask whether the
witness knows of any documents in the category that were not produced. Also ask
pointed questions about more specific kinds of documents that fall into the
categories and that were not produced but that you believe or suspect exist.
Ask whether the witness reviewed any documents when he was preparing to
testify, including personal notes, and make sure that you have copies of them.
You should be aware that, while an argument can be made that many documents
prepared by or reviewed by the witness are work product, cases in this area have
held either that the designation of an expert to testify waives any work product
or attorney-client privilege or that counsel's need to cross examine the expert
on materials covered only by work product protection outweighs that protection.
See, e.g., National Steel Products Co. v. Sup. Court (1985) 164 Cal.App.3d 477,
485, 488, 210 Cal.Rptr. 535, 540, 542; County of Los Angeles v. Sup. Court
(1990) 224 Cal.App.3d 1446, 1458, 274 Cal.Rptr. 712, 720.
Finally, explore any possible sources of bias or interest. In particular, you
should ask about the witness's relationship with the parties, with your
opponent's counsel, and with the plaintiffs' or defendants' bar, and the terms
of the witness's engagement and compensation.
5. CROSS EXAMINING YOUR OPPONENT'S EXPERT AT TRIAL
If you intend to try to prevent your opponent's expert from expressing an
opinion, it may be better to do so by means of a motion in limine to try to
avoid giving your opponent an excuse to present the witness's qualifications in
exhausting detail and to avoid investing too much time before the jury in an
effort that will probably fail. Assuming that the expert is allowed to testify,
if your deposition was done properly, your cross examination will be easy,
effective, and free of risk. Asking only questions that the witness has already
answered in the deposition, you:
1. You should try and discredit
your opponent's expert by bring out any limitations in the witness's qualifications, experience
or opinions.
2. You should try and elicit any limitations on the witness's
belief in his opinions and any expressions of confidence that he cannot
support.
3. You should try and bring to
life limitations on the expert's preparation and highlight any additional work
that the witness has admitted could have rendered his opinions clearer.
4. You should try and demonstrate any damaging admissions concerning any issue in the case.
5. You should try and get your
opponents expert to totally commit to any assumptions that can easily be disproved, questioned
or damaged. Alternatively,
get the opponents expert to make an assertion that no conceivable set of facts could have
changed any of his opinions.
6. Posit hypothetical opinions that supports
or bolsters your theory. Alternatively, you should get the
opponent's expert witness assertion that his opinion would be unchanged even in a
hypothetical case that obviously promotes the opposite conclusion.
7. You should try and demonstrate any admissions of
your opponents expert concerning the qualifications of
your expert and the reliability of his sources, tests, and methods, if you can.
This can be a dangerous ploy especially if your expert qualifications are not a
solid as your opponents are.
8. Save a good question for last.
A good last question is not an argumentative or conclusionary
question that will elicit a valid objection from your opponent or give the witness a chance to get the last word. A good
question is a question that substantially helps your case, if it doesn't then
shut up and sit down. There are many tales of attorneys who were ahead on points
going into the home stretch when they asked that one question too many and lived
to pay the price. If the chance presents itself, then by all means as that good
question. Make sure that it is posed in exactly the same form as it was at the
deposition. Also be sure that the answer will benefit you and not rebound
to your chagrin by him simply changing his answer. If you do get the same
answer, then by all means SIT DOWN you have done your job. If your witness
doesn't answer exactly like he did at the deposition, then remind the witness of
the deposition, ask him if he remembers it and the answers that he gave, ask him
if he was under oath, then ask him whether he was
asked the previous question and gave the previous answer, and then sit down.
Don't ask one more question, lest it become one too many.
6. REHABILITATING YOUR EXPERT AFTER CROSS-EXAMINATION
Your attorney must make a determination of whether
their expert needs to be
rehabilitated through re-direct examination. When counsel is proceeding before the trier of fact, particularly a jury, counsel can demonstrate significant
confidence in the testimony of his or her expert by choosing not to attempt to
rehabilitate the expert. Also, attempting to rehabilitate your expert on a point
which is not important, or on which his testimony is truly and obviously weak,
may backfire by simply drawing attention to the weakness. Where
the expert must be rehabilitated, counsel should confine re-direct examination
to specific critical areas. The rehabilitation should be precise and direct.
Examining one's own expert on re-direct can afford your opponent an opportunity
to revisit and reinforce your expert's weakest areas on re-cross if the
re-direct examination is not carefully thought out and precisely applied.
I hope that this
article is of help to both laymen and attorneys. If it is then I have done my
job. Picking an expert witness is not an easy process, however it is one that
the client should participate in. If they don't they take the chance that the
attorneys choice will be a friend that may or may not be the best choice. So be
sure and interview the expert yourself, before committing to their employment.
If you don't you may be sorry later.
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