Effective Expert Witnessing

Practices for the 21st Century

Jack V. Matson, S. Ravi Jagannathan

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781466578647
• Edition: 5
• Topic: Derecho
• Subtopic: Ciencias forenses

The testimony of an expert witness can lead to success or failure in cases that hinge on the presentation's impact on a jury. Effective Expert Witnessing, Fifth Edition: Practices for the 21st Century explores the fundamentals of litigation, trial preparation, courtroom presentation, and the business of expert witnessing. Extensively updated to reflect new developments since the last edition, it provides practical advice enabling expert witnesses and attorneys to maximize the effectiveness of their expert testimony.

The Fifth Edition includes three new chapters. The first uses a hypothetical case study to explore expert witness immunity and issues related to professional malpractice and civil liability. In a chapter on psychology and the art of expert persuasion, noted social psychologist and witness preparation specialist Ann T. Greeley reveals the psychology of juries, discusses what makes an expert effective, and provides tips for conveying effective testimony through verbal and nonverbal behavior and graphics and technology. The final chapter surveys nine of the worst mistakes an expert can make and provides tips on how to avoid them.

Accompanying the book are downloadable resources in which Dr. Matson introduces video clips demonstrating effective and ineffective expert testimony at deposition and trial. The book and supplemental downloadable resources provide robust strategies ensuring that expert witnesses have the best possible advantage in presenting testimony that is credible, persuasive, and compelling.

The Litigation Process

II

May you have a lawsuit in which you know you are in the right.

—Gypsy proverb

The Pretrial Process

4

I can’t do literary work for the rest of this year because I’m meditating another lawsuit and looking around for a defendant.

—Mark Twain

In most cases, the first formal notice of a lawsuit is the complaint. This is a legal document written in very general terms alleging some cause of action (i.e., the way a party has been harmed). An example might be a breach of contract in which one party did not perform agreed-upon items. Another cause of action is negligence, in which one party violated the standard of care in the fulfillment of an obligation.

Affirmative Defenses

Provided there are no objections to the complaint, the opposing party files an answer. In a typical answer, all claims are denied and so-called affirmative defenses are presented. An affirmative defense is a legal basis to bar a plaintiff from recovery, even if the allegations in the complaint are true. Affirmative defenses refer to legal grounds for dismissal, as opposed to factual grounds.

Common affirmative defenses are waiver, assumption of the risk, and statute of limitations. A waiver is an action by the plaintiff that results in giving up the claim. For example, a plaintiff waives the right to sue by signing a settlement agreement before initiating litigation. A plaintiff assumes the risk of injury by knowingly engaging in an act that will likely cause injury, such as hang gliding, cliff diving, or other extreme sports. The defense of statute of limitations refers to the expiration of the legally established time limit for asserting a claim.

In addition to affirmative defenses, a defendant may assert a claim against the plaintiff or another party. A claim made by the defendant against the plaintiff is called a counterclaim. Third-party claims involve shifting the responsibility to another party. The defendant states that he or she was not responsible but, rather, a different party—the third party—was. For example, a third-party claim could involve the shift of responsibility from the prime contractor to a subcontractor. For any affirmative defense or third-party claim, the burden of proof resides with the defendant.

Complaints, affirmative defenses, and counterclaims combine to create the pleadings in a case and define the legal issues, factual contentions, and theories of relief or defense. Pleadings must be specific enough to substantiate litigation without dismissal, while at the same time broad and ambiguous enough to allow for amending or fine-tuning claims and defenses as the litigation unfolds.

The expert can be helpful to the attorney in constructing the complaint, developing the answer and affirmative defenses, or identifying additional parties who should be included in the lawsuit.

Discovery

Once all the pleadings have been filed, the next stage of a lawsuit is discovery. Discovery is the formal pretrial process of fact-finding in which lawyers from both sides are able to obtain facts and information about the opposing party’s case. During discovery, each party gives the opposing party access to information, documents, and key witnesses with pertinent facts. A primary purpose of discovery is to ensure that cases are decided based on the evidence known in advance, rather than as a result of surprises in the courtroom. Attorneys from both sides use the information provided during discovery to develop their strategies for trying the case.

Discovery is composed of three primary parts: interrogatories, requests for production of documents, and depositions. Rule 26(b)(4) of the Federal Rules of Civil Procedure establishes a two-stage discovery process for testifying experts. The first stage outlines what the parties must do, such as respond to interrogatories; provide pertinent documents; identify experts, their subject matter, and the substance of their facts or opinions; and provide a summary of the grounds for each fact or opinion. The second stage allows the court to order further discovery by other means. This process may be subject to the payment of fees in certain circumstances. Beyond this, however, there are really few clear ground rules.

The intent of discovery is to gather information and facts relevant to the case. While the scope of discovery is broader than the scope of admissible evidence in trial, unreasonably broad requests for information, sometimes called “fishing expeditions,”* are not allowed. Requests cannot be overly broad or cause undue burden on the party answering them. Information must be relevant and must lead to the discovery of admissible evidence.

Cases can be won or lost during discovery. Sometimes key information is never properly requested from the other side; key documents may not be identified or, conversely, there may be so many documents that they cannot be properly tracked or inspected. To be successful as an expert witness, you must know the strategy and tactics required to organize yourself and your information most effectively. Courts encourage both sides to become knowledgeable about the facts and relative value of their positions in the hope that a settlement can be reached prior to trial. In the event that the case does go to trial, proper discovery and preparation can expedite the case. As a result, discovery is often the most time-consuming aspect of litigation—in some cases lasting years.

Interrogatories

Interrogatories are a common form of written discovery and comprise a series of written questions sent to the opposing party. Upon receipt, the receiving party has 30 days in which to respond or raise objection to any or all of the written questions received. Objections may be based upon grounds that reflect the burden on the answering party. Additionally, parties can claim that the information or documents are subject to the attorney–client privilege and therefore may not be released to the opposing party. The trial judge ultimately decides whether any of the objections are valid.

Interrogatories are directed to the parties themselves. Responses must be in writing and signed by the party under oath. In addition to getting factual information about a party’s claims or defenses, interrogatories can be used to gain information about the scientific foundation of the opposing side’s case, including the identification of expert witnesses who will testify and the subject matter of their expected testimony.

Experts should assist in both developing and drafting interrogatories. Based upon their expertise, experts are often in the best position to determine whether the information requested is scientifically or technically relevant and if it either indicates or fits within a strategy for the case. Often, experts identify the vulnerabilities of the expert testimony provided by the opposing side. These vulnerabilities, whether stemming from questions of fact, methodology, reliability, or relevancy, can be exploited during cross-examination to undermine the opposing side’s case. Identifying the right questions and giving thorough responses during the interrogatory process can greatly enhance the defensibility of expert testimony.

The interrogatory process can be both burdensome and expensive. Lawyers can use the interrogatory process to wear down the opposition by requesting inordinate amounts of information from virtually anyone remotely associated or involved with the case. In 1993, Rule 26 of the Federal Rules of Civil Procedure was amended to limit both the number of interrogatories a party may propound to 25, including subparts, and the number of depositions to 10. Under certain circumstances, the court may allow additional interrogatories or depositions as long as the process complies with the rules of discovery; the process is not unduly burdensome, duplicative, or expensive; and the benefits outweigh the costs involved. “Part of the reasoning behind the amendment was that much of the information ordinarily covered in a traditional first set of interrogatories should now be covered by the automatic disclosure provisions of Rule 26(a).”*

Automatic Disclosure

The Federal Rules of Civil Procedure now contain automatic disclosure provisions. Rule 26(a)(1) requires that each party provide to the other the following information without waiting for a discovery request:

• The names and addresses of all witnesses and the subject matter on which they have information

• A list of all relevant documents, data, or other tangible information relevant to the proceedings that the party has in its possession

• Any and all damages claimed, including the basis upon which they were calculated

In addition, many federal and state jurisdictions ask for an expert disclosure, either with or without deposition. The expert disclosure can take a variety of forms; in most cases, it must follow specific guidelines and be signed by the expert and notarized.

The automatic disclosure provisions are intended to streamline the discovery process, to eliminate abuse and excessive cost, and to encourage early and full disclosure of relevant information regarding the case.† Whether to adopt the automatic disclosure provisions is at the discretion of individual federal district courts; state courts may or may not have civil rules of procedure that mirror the federal rule. As a result, this rule is not fully adopted in all federal and state jurisdictions.

Production of Documents

In the discovery process, any party may serve any other parties with a request for the production of documents that seeks all written material relevant to the specific subject of the litigation. As in the case of interrogatories, a party served with a request to produce documents has 30 days to respond by producing all of the documents requested, by notifying the requesting party of the arrangements made to produce all of the documents requested, or by filing a specific legal objection to part or all of the request.* In support of this effort, an effective expert needs to educate the lawyer on the types of documents that are available and that are most likely to provide the best insight into the case and the opposing party’s position.

The production of documents in federal cases is governed by Rule 34. This rule states that parties requesting documents can inspect or make copies of documents or obtain access to information stored in electronic form, including printouts. This applies to all types of documents, including correspondence, drawings, graphs, charts, photographs, phone records, test results, laboratory reports, and other data compilations. The rule may also apply to preliminary drafts, working papers, handwritten notes, and personal diaries, as long as they contain relevant information that is not classified as privileged.†

While most documents and records are subject to production, some that are classified as privileged are protected and therefore need not be produced. Privileged information falls within the following three categories:

1. Attorney–client privilege. Communications between a client and his or her attorney during the course of representation are not discoverable.

2. Work product privilege. Documents prepared in anticipation of litigation under the supervision or at the direction of an attorney are not discoverable. Working papers under the direction of an attorney, such as notes of telephone conversations, are also exempt from discovery. But be careful what you write. Some work product documents can be discovered, such as calculations that can and most probably will be introduced as evidence. Also, there are times the judge will require you to produce documents if the information is no longer available from another source. You may have the only copy of an important drawing, for example. If you are designated a testifying expert at some point, you may be required to produce all work product. Unless you are retained specifically as a consulting expert and are not expected to testify, assume that your work product will be discoverable.

3. Proprietary processes and patents privilege. Information that is vulnerable to exposure to competitors may be exempt, or it may be subject to production under a protective order issued by the court. You can be of great assistance to the lawyer in understanding what is and is not proprietary.

Questions about privilege are dealt with by the judge in camera. Through this process, only the judge reviews the material (in secret) before ...