Oregon State Bar Bulletin — APRIL 2002

Legal Practice Tips

Expert Witnesses: The do's and don'ts of using expert witnesses
By Scott E. Miller

Experts are people with specialized knowledge, skill, experience, training or education who can help the attorney, judge or jury understand the evidence better or help determine a fact at issue. In situations where there is a need to present some specialized, scientific or technical information that will assist the judge or jury make their decision easier, it is essential that a qualified expert be engaged to assist with the case.

Experts can assist you in many ways. An expert can and should help you develop the case by assisting with discovery requests, reviewing interrogatories, assisting with depositions and observing the testimony of the expert(s) for the other side. Experts can be used to perform or testify to forensic accounting, economic damage calculations, business valuation, work impairment, causes of injury, authenticity of records or value of assets (among others).

You need not designate your expert right away. You way wish to first engage the expert as a consultant, thereby preserving the attorney/client privilege (and preventing the work from being discoverable). Then, once the "preliminary" work has been performed, you can redefine the engagement by designating the person as an expert. You and the expert must be careful since all of the expert's work, including "what if scenarios" or written comments on alternative arguments will be discoverable once the expert's designation changes from consultant to expert. You should insist that if a document is provided to anyone by the expert/consultant, prior to all of the work being completed, it must clearly state on its face it is a preliminary draft. This may not prevent opposing counsel from trying to use it to discredit the expert's testimony, but it will make it much easier to discount it as an incomplete analysis.

Hire your expert early. Unnecessarily delaying introducing your expert into the case will only result in wasted time by you and potentially settling the case too early, too late or for the wrong amount. A good expert may be able to provide additional insight into the facts of the case, uncover previously unknown facts or provide guidance as to the potential value of the case.
After you have decided to hire an expert, be sure to choose a qualified expert. Ask about the expert's background and experience. Find out if he or she has the requisite knowledge, skill, experience, training or education to be qualified as an expert under Rule 702 and 703 of the Federal Rules of Evidence and under the standards set by Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). It is the attorney's job to ensure the experts are properly qualified to testify to the opinions they will give. If the expert "stretches" his or her testimony to include areas in which he or she is not qualified, it could result in the expert being viewed as an advocate for the client, losing credibility with the court, damaging his or her other "good work" or being disqualified altogether.
The expert must also be able to effectively communicate with the judge and/or jury. You should interview the expert prior to engaging him or her. Evaluate the potential expert's manner of communication - not just their verbal or writing skills, but also their appearance, the speed of their speech, the exhibits they prepare, their "body language" and their ability to "converse" with a court and engage the judge and/or jury during his or her testimony. I witnessed one expert get on the stand with uncombed hair and mis-matched clothing. When asked about his background, he told the court he was a retired senior partner from a "Big 5" CPA firm and that he does litigation support work to fill in the gaps when he is not fishing. Needless to say, he was unpersuasive with the jury regarding damages.

An expert must be believable. You need to collaborate to present the expert as an independent neutral third party who, although engaged by and paid by you, provides high quality unbiased testimony and credible analysis that will assist the tier of fact achieve the proper result. In a speech before the American Society of Appraisers in June 1995, Judge David Laro of the U.S. Tax Court said that judges expect experts to arrive at their opinions as objectively and reliably as possible, and they will disregard experts who are biased "hired guns." I watched an expert for the defense testify in a case involving a business valuation. He stated that the business had a negative value, but he gave it a value of $20,000 "just to show some value." (The business was profitable but highly leveraged.) The judge found his testimony so unbelievable, he refused to allow cross examination of the expert and ended the trial at that point, ruling in favor of the plaintiff and using the value established by the plaintiff's expert.

Be sure to look for experts who are not "yes men". Seek out those experts who are willing to tell you "the ugly truth" even if it is not what you or the client wants to hear. It's better to know early on what the expert believes so that you can move the case in the right direction. Sometimes, it means the expert tells you the case may be unsuccessful and why. The reasons could be poor fact patterns or potential evidence that may be admitted by the other side that could be detrimental to your client. Sometimes, you and your expert would better serve the client by encouraging settlement rather than allowing a case to go forward that may result in a loss or a damages award not materially different than a settlement, but with high legal and expert witness fees.

Make deadlines clear, and do so early on. This will allow your expert to better plan his or her time out and avoid conflicts with other work. You need to monitor all deadlines and take responsibility for notifying the expert as soon as possible about scheduling changes and when and where to appear at trial or depositions. Experts need to have an appreciation for these deadlines and do their best to complete their work with sufficient time for you to review their work before it must be submitted to the court or opposing counsel.

Be sure there is an engagement letter. The engagement letter should be drafted as an agreement between the expert and attorney with the client guaranteeing payment of the expert's fees. This is done to preserve the attorney/client relationship. The agreement should clearly articulate the rights and responsibilities of each party as well as the nature of the engagement. The engagement letter should clearly state the fee arrangement and it should always include a reasonable retainer. The expert needs to be assured that the fees will be paid, which should not be a surprise to you or your client. Unlike an attorney, an expert cannot accept an engagement that is contingent upon the outcome of the litigation. Doing so would create the appearance of a conflict of interest and bias that could destroy the expert's credibility.

Once hired, the expert needs clear and specific instructions. This will allow the expert to be more efficient, reducing the chance of going off on tangents and ensuring the final work product is what is necessary to assist you in properly presenting the case. Proper instructions are not just given at the onset of the engagement, but periodically while the expert is performing the work. The expert and attorney should discuss the possibility of status conferences to discuss the progress of the case and the expert's work. You may request an interim oral presentation of the expert's work as a "checkpoint" of the progress and direction the expert is taking. This may also assist you with any settlement negotiations that may be taking place at that time or soon thereafter. Avoid written progress reports as they are discoverable by the other side and although drafts of unfinished work, they could be used to confuse the issues during the experts testimony.

A checkpoint meeting is an excellent opportunity for you to get an idea of what the expert's preliminary conclusions are and to discuss strategy for presenting his or her testimony. The method of entering in evidence and testimony can be critical to the success of the expert's testimony. By discussing the manner of presenting the evidence and testimony, you may find a more effective way of getting the information presented to the court. This is an excellent time to go over the contents and format of a written report, if one is required. Although federal court and many state courts require a formal written report, the form and substance of the reports can vary. You should also review a draft prior to its submission to ensure that the expert has communicated all of the issues appropriately and that the report complies with the appropriate rules of evidence and procedure.


10 DO'S

Engage the expert early

Hire a qualified expert

Hire an effective communicator

Give clear deadlines and monitor them

Give clear and specific instructions

Structure the assignment in a cost effective manner

Have progress or "checkpoint" meetings with the expert

Listen to the expert regarding documentation requests

Have the expert assist with discovery requests, interrogatories and observing opposing expert's depositions and court testimony

Properly prepare the expert for testimony

10 DON'TS

Wait until the last minute to hire an expert

Hire an inexperienced expert

Hire a "yes man" or "hired gun"

Hire an expert without a good engagement letter that states each parties rights, responsibilities and the fee arrangement

Let the expert dictate deadlines

Unreasonably restrict access to documents

Wait for the last minute to have the expert prepare you
Overuse the expert

Forget the importance of your expert's exhibits

Let you or your expert go to court without proper preparation


Do everything possible to keep costs under control. Although it is extremely difficult for an expert to know how much time a project may take (and thereby estimate his or her fees), projects can be broken down into smaller pieces that can have budgets. Benefits of breaking projects into discrete steps include: better cost control; less time wasted doing unwanted or unnecessary work; better adherence to and development of reasonable deadlines; and the ability to assess the quality of the case earlier on, thereby saving time and money.

Although many experts may not like it, you should reasonably limit the information provided to the expert. The expert should always be given sufficient information to understand the case and accurately and adequately do their job, but not so much information they are distracted by extraneous issues or information. This should be done with great care, of course. Without sufficient information, the expert could reach the wrong conclusion about an issue. And if the expert does not have sufficient data to substantiate his or her work under cross-examination, the results could be disastrous. If there is a disagreement between you and the expert as to what is required, you should give the expert what he or she requests.

You also need to be clear about the objectives for the expert's work and know what information you are providing the expert. The expert needs to be clear with you about what he or she needs and why. You both must understand that each has a different perspective and one may know something the other doesn't. It is not uncommon for an expert to be able to identify issues the attorney may not have thought of - or to uncover evidence that was previously unknown to the attorney - that result in significant changes to the litigation strategy or case presentation.

As the trial date approaches, you should properly prepare your expert. First, you need to understand what information the expert has. Without a clear understanding of the information, you will not know what questions to ask to get the evidence in effectively or perhaps at all. To this end, the expert should make a presentation to you and allow you to ask probing questions. This will more effectively prepare the expert and test his or her work for "holes." The expert should advise you of key areas or information to bring out on direct examination and redirect examination. At this time, you and your expert should discuss how evidence will be entered into the record.

Have detailed discussions about the expert's use of exhibits. Many attorneys have strong feelings about how an expert's exhibits are produced and presented. Good quality exhibits can be extremely helpful to presenting a case effectively, and by strategizing together; they should be able to produce much more effective exhibits. High quality exhibits will effectively use size, design and color, be visually appealing, be laid out in a fashion for easy reading, and clearly and simply communicate the issue. The expert should avoid producing exhibits that demonstrate too many issues on one exhibit, because it could result in the message(s) becoming "blurred" or ineffectively communicated.

You should use this time as an opportunity to advise the expert of what to expect on cross examination. Discuss the opposing side's strategy, the types of questions (and the expert's responses) to potential cross examination, how the expert likes to testify, etc.
Discuss what you expect from the opposing expert and what, if any, services you want the expert to perform regarding the opposing expert. You may want assistance with fact witnesses or experts who are to be deposed. This could result in the expert observing the deposition and providing questions to you in addition to doing the same thing during the trial. If the opposing expert has submitted a written report, you may ask your expert to review and critique it prior to your cross examination of the opposing expert.

Both you and the expert need to be careful that the expert is not "overused." An example would be the expert sitting at the table with you or appearing in the audience every day during the trial. Doing so could give an appearance that the expert is an advocate for your client and destroy the expert's credibility with the judge and/or jury.

When the day comes to testify, the expert should be well prepared. No matter how experienced the expert, you should prepare the expert for any deposition or trial testimony. This should include a lesson on how to testify. When it comes to the expert's testimony, he or she should have a clear and thorough understanding of the facts, the data collected, the analysis prepared and the basis for the conclusions reached. The expert should be relaxed, properly dressed and mentally prepared to testify. The expert only gets one chance to present his or her work, so make sure it is properly presented. No matter how good or thorough the work performed, if it is not properly addressed in the expert's testimony, exhibits and reports, the work loses its value. The lawyer and the expert must take equal responsibility for ensuring it is done right.

Experts are essential to the success of many types of litigation. Used appropriately, they can make your job easier and maximize the strength of the case.

ABOUT THE AUTHOR
Scott E. Miller, a certified public accountant and certified valuation analyst, is president of Miller Accounting & Consulting, P.C., in Portland. He can be reached at scott@millercpa.com.

© 2002 Scott E. Miller

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COMMON MISTAKES IN UTILIZING EXPERTS

• Hiring your expert too late.

• Hiring an expert that will tell you what you want to hear (hired gun).

• Not giving clear and specific instructions.

• Not having the expert assist with discovery requests, interrogatories and observing the deposition and court testimony of opposing experts and relevant fact witnesses.

• Providing insufficient information to the expert.

• Not having periodic "checkpoint" meetings.

• Not adequately preparing the expert.

• Not having the expert prepare you.