How to Deal With Your Expert Witnesses Effectively. Trial Reporter (Summer 2009).

HOW TO DEAL WITH YOUR EXPERT WITNESSES EFFECTIVELY

This article originally appeared in Trial Reporter, Summer 2009.

Expert testimony can make or break your case. Expert related expenses are nearly always the largest expenses in our cases. Unlike defendants in medical malpractice or products liability cases, we rarely have the luxury of naming multiple experts in a particular specialty and thus, cannot easily replace experts if problems arise. For this reason, it is essential that we handle our expert witnesses with extreme care. In seventeen years of litigating cases, I have found the following keys to the care and feeding of expert witnesses: (1) careful selection; (2) early preparation (this applies to both lawyer and expert), and (3) thorough preparation for testimony. [1]

I. Selection

Do you really need an expert? Remember that if the expert will not be testifying about matters beyond the ken of the jury, a judge will likely find that his testimony does not “assist the trier of fact” and preclude it. See Maryland Rule of Evidence (“MRE”) 5-702. Once you’ve determined that you need an expert, review the file to see if you have to find one or if he or she has potentially been chosen for you (e.g., a treating doctor). Regardless, you should thoroughly vet any potential expert. MAJ’s listserv — and those of other trial lawyer associations are invaluable when learning about possible experts. A Google search is a must: I recently “Googled” a possible toxicologist for a Virginia case and learned that a Judge had excluded his opinions. [2] I prefer to avoid experts who advertise, unless I’ve exhausted all other options. Similarly, I try to avoid experts who no longer do the thing that made them an expert in the first place (i.e. surgeons who no longer operate). In a medical malpractice case alleging a deviation from the standard of care, the best practice – given the uncertainty of the statute and the cases interpreting it – is to select and have testify a physician with the same board certification as the defendant physician. See Cts. & Jud. Proc. Code Ann. § 3-2A-02.

Once you’ve narrowed down your search to a few experts, review each candidate’s resume and fee schedule. Before you commit to an expert, get a sense of the scope of work anticipated by the expert and its cost. You don’t want to find yourself arguing with your expert about his or her fees. Also, you don’t want your fact-finder to view the expert as a greedy swine. Some lawyers prefer to memorialize such agreements in writing and have their experts sign them. Because I assume that anything I send a testifying expert is discoverable, I prefer not to do this because of its potential negative affect on a jury. Of course, there is little or no risk to having pure consulting experts sign these agreements. Make sure you question the expert about whether he or she has the time to take on the assignment. Although you cannot force the expert to focus on your case, obtaining assurances at the beginning of the relationship may get your case to the top of the pile when you need it to be.

If your case will be filed in Federal Court, make sure the expert knows upfront that, in order to comply with Federal Rule of Evidence (“FRE”) 26(a)(2), you will need, among other things, a signed report, a list of cases in which she has testified by deposition or at trial during the past 4 years, and a list of her qualifications, including a list of all publications authored in the previous 10 years. You may also want to run the expert through a service like Idex [3] or a jury verdict search to make sure that their list is not missing cases. Similarly, if they don’t have a list, but are willing to help you create one, these tools can be useful.

If you don’t know — and cannot learn through colleagues — how the expert operates, go meet with her to find out. I have encountered orthopedic surgeons who refuse to discuss permanency without first examining the patient and providing a written rating under the AMA Guidelines. In a patient with obviously minor permanency, this could lead to the injection of an unfortunately low permanency rating into your case. I have never regretted meeting with an expert at an early stage in a case. I can’t say that about the converse. Confirm with the expert the accuracy of her curriculum vitae.

Lastly, make sure that the expert is personable and can teach and tell stories. In my experience, juries weigh the expert’s methodology and presentation more heavily than his or her credentials. Similarly, an expert’s arrogance can kill your case. If you can’t convince the expert to get rid of it, get rid of the expert.

II. Early Preparation

First, learn the facts of your case. Second, become knowledgeable about the expert’s area of expertise before you meet with her. Having the expert teach you basics that you could easily pick up through the Internet or books will waste your client’s money and diminish your standing with the expert. Third, give the expert all of the factual case material, both positive and negative (exclude your work product as this would waive its protections in most jurisdictions). [4] If you make the expert vulnerable to the following cross-examination: “So, Mr. Plaintiff’s Counsel did not provide you with…” both you and the expert will be tainted and your role as truth-teller in the courtroom [5] will be crippled. Fourth, index the records for your expert. Experts appreciate it when you make their lives easier and clients appreciate not having to pay for the expert to organize your documents.

Fifth, discuss the ground rules. For example, I typically tell my non-treating physician experts not to put anything in writing unless we first discuss it. If there is a need for written communications, keep them formal. You want to give the impression that your expert is highly competent and impartial, not your old buddy. Don’t socialize with your experts unless you won’t mind if a jury hears about it. Talk to your expert about how they will tab, highlight, or annotate records since opposing counsel will often ask about such things.

Sixth, give the expert an opportunity to sign off on your expert disclosure. This will avoid a line of cross-examination designed to show that you drafted your expert’s opinions before the expert, in fact, gave them to you. [6]

Seventh, thoroughly disclose the expert. When I have a treating physician (arguably a hybrid fact/expert witness) I still disclose all of her potential opinions. For example, an opinion about whether plaintiff’s bills are fair and reasonable is arguably a forensic opinion because it is not one which the physician would formulate during the ordinary course of treating the patient. Disclose it and other such opinions that you need to make your case. [7] I also state that the disclosure incorporates any deposition transcript of the expert generated in the case. Although I have seen judges allow defense counsel to get away with disclosing far less about their expert’s opinions, and the bases therefore, than I believe Maryland Rule of Civil Procedure 2-402 (g) requires, I still fully comply with the Rule. Again, why fight an avoidable exclusionary battle.

Be prompt. You may have to wait for an hour or more to see your expert (always bring additional reading material to meetings with doctors), but do not make him wait. He could express his displeasure by harming your client’s case. Similarly, unless there is something improper about the expert’s charges, always pay the expert on time. I have heard too many experts complain about getting stiffed by plaintiff’s counsel. When this occurs, it hurts us all.

III. Preparation for Testimony (Deposition and Trial)

a. Generally

Meet with the expert. But before you do so, gauge your expert’s level of forensic experience. Undoubtedly, the length of your meeting should depend in part on the expert’s level of experience with testifying. Some attorneys I know who use out-of-area experts have been successfully preparing them for testimony using videoconferencing. If you do this, make sure your experts have an identically paginated set of records so that you can literally be on the same page during the prep session.

Focus on the expert’s methodology and how he or she can best teach it. Review the key opinions – and bases therefore – that you need to make a prima facie case. Talk about demonstrative aids and exhibits. If the case warrants the expense, get your expert involved in preparing an illustration or diagram. This should maximize your chances of being allowed to use the demonstrative aid at trial. Have your clients save any hardware that has been inserted into their bodies, or rehabilitation devices (e.g. braces, casts, TENS units) they have used, so that the expert can discuss it. Getting the expert off the witness stand and in front of the jury should maximize his or her presentation.

In certain cases, it will be essential that you review the law: both what it is, and what it is not. I once had carefully reviewed the law and jury instructions with a premises security expert to ready him for his deposition. Opposing counsel asked him, over my objection, whether he thought a management company for an apartment complex had a duty under Maryland law to ensure its tenants’ safety (several Maryland cases state that this is not so). I was mortified when my expert replied affirmatively. The ride back from New Jersey was long indeed.

Don’t hang your expert out there. In other words, don’t push a weak-minded expert into giving you a dubious opinion that will make the expert look bad. While this tactic might yield some ammunition for a settlement, if the case doesn’t settle, it can be harmful at trial and may haunt the expert in later cases. Be mindful of Daubert (if in federal court) or Reed/Frye (if in state court). These cases, and their progeny, set forth the standards under which judges will review the sufficiency of your expert’s testimony. An analysis of these cases is beyond the scope of this article.

If you want to use a Learned Treatise at trial to bolster your expert’s opinions or attack the opposition expert, review it with your expert so he is comfortable testifying that it is both acceptable and reliable. See FRE 803 (18). [8] Equally important, make sure there is nothing in it that will harm your case. Also, find out if your expert will concede that other treatises are authoritative. If he is going to testify about an issue that some experts disagree about (e.g. how much physical therapy is reasonable), ask him if he’s ever given a contrary opinion on that issue. If your expert will testify that your client’s bills are fair, reasonable, necessary and causally related to the occurrence from which your case arose, probe the basis for this opinion to make sure it won’t be struck.

b. Direct Examination

This is the place to bring out negative facts that you know the defense knows about. Prepare your expert to deal with these facts.

Talk about legal standards for testimony. Make sure your expert understands what they mean so he can’t get tripped up on cross-examination. See if the expert will testify to his conclusions within a reasonable degree of probability or, better still, certainty. Next, find out if your expert is 100% certain about each opinion. Regarding some opinions, this may be eminently reasonable. If so, after you elicit the legal standard, ask: “And beyond that, how certain are you?”

c. Cross-examination

1. Basic Advice for the Expert when Answering Questions
   1. Stay cool. Be comfortable and be yourself.
   2. Don’t be arrogant or condescending.
   3. Don’t argue with counsel.
   4. Limit your answer to what was asked.
   5. Listen to the question (ignore the tone of the question).
   6. Think before you answer.
   7. Pause before you answer.
   8. Be an expert, not an advocate.
   9. Answer questions directly.
   10. Be formal.
   11. Speak loudly and clearly.
   12. Avoid slang and jargon.
   13. If you need to do so, ask that a question be rephrased or repeated.
   14. Don’t guess.
   15. Beware of paraphrasing or restatements.
   16. Beware of hypothetical questions.
   17. Beware of questions asked in a series. Often a key fact will be changed or a “zinger” later inserted.
2. Basic Advice for the Expert Regarding Non-verbal Communication [9]:
1. For short answers, look at me; for long answers, look at the jury…
2. …but, don’t look to me for answers to any questions.
3. Maintain good posture.
4. Use a moderate and natural number of mannerisms and gestures.
3. Specific Topics

Use point-of-view analysis to prepare your expert for cross-examination: at an hour when your phones aren’t ringing, close your e-mail program, hold your phones, and think about how you would attack your expert if you were defending the case. If you have the time, ask colleagues on the listserv what to expect from defense counsel when he or she is cross-examining your expert. You may find discovery or de bene esse deposition transcripts given by your expert or taken by your opponent. Both categories of depositions can be useful in preparing your expert for testimony.

Make sure your expert can answer the question: “What is your role in this case?” without harming the case.

d. Deposition Specific

Confirm that your expert will charge opposing counsel the same rate as he would charge you. Make sure that your experts know how to respond to the “Do you have any other opinions (or bases)…” questions so that they are not precluded from supplementing their opinions or responding to opposing experts. They should specifically state that their opinions are subject to change if new evidence comes to light, and that they reserve the right to offer opinions in response to defense experts.

e. Trial Specific

Find out how the expert would explain the case to a group of 13-year-olds. This will aid you and the expert in simplifying your explanations. Ask the expert to look at you when giving a short answer and at the jury when giving a longer one. This will appear far more natural than if the expert turns to the jury to give every answer. Discuss dress. Advise them to leave the Ferrari home. Try to root out any nervous ticks or habits.

f. Courtesy

Let the expert know as soon as you no longer need her services. This should keep you from receiving an invoice after you’ve disbursed the settlement proceeds. Also, unless you know she doesn’t care, let the expert know the result. Many of them actually do care about our cases and like to know what happens to them.

IV. Some Specific Problems

1. Medical Negligence Cases

The subject of drafting certificates of merit and reports to be signed by your experts and filed in medical negligence cases is both complicated and fraught, and beyond the scope of this article. I commend to you the article “Compliance with the Court of Appeals’ Edicts on Certificates of Merit and Reports in Walzer v. Osborne and Carroll v. Konits” by David J. Wildberger, Esq. that appeared in the in the Fall 2007 issue of Trial Reporter, and the materials he produced for the April 17, 2009 MAJ Hot Tips in Medical Malpractice seminar.

Beware the “20% Rule.” Under Cts. & Jud. Proc. Art. § 3-2A-04(b)(4), “A health care provider…who testifies before an arbitration panel or in a court concerning…departure from standards of care may not devote annually more than 20 percent of the expert’s professional activities to activities that directly involve testimony in personal injury claims. See also, Waldt v. University of Maryland Medical System Corp., 181 Md.App. 217, 956 A.2d 223 (2008), cert. granted, 406 Md. 744, 962 A.2d 371 (2008).

Beware the “turncoat expert,” one who reviews your case, tells you he cannot support it, and later agrees to testify for your opponent. Having researched and litigated this issue in Maryland a few years ago, I learned that the best way to exclude a turncoat expert is to demonstrate to the court that you have shared your work product (i.e. theories or misgivings about the case) with the expert. Merely discussing negative facts that could easily be gleaned from the records of the case will not suffice. If you get a negative opinion from an expert, try to keep him on the case as a consulting expert (confirm this in writing) before he can become a turncoat. [10] This could cause the other side to back away from using him before you need to file a motion to strike or exclude.

b. Frequent Flyers/Hired Guns

If you are weighing whether to go after such an expert’s financial records (see Wrobleski v. de Lara, 353 Md. 509, 727 A.2d 930 (1999)), beware the boomerang. In other words, first consider whether your opponent could make a prima facie case to obtain your expert’s financial records. If so, detente might be the better part of wisdom.

V. Conclusion

Undoubtedly, in many cases we cannot justify dedicating the resources to employ every suggestion in this article. Nonetheless, I hope it provides a few useful tips for your next case involving expert testimony.

Copyright © 2009, Eric N. Stravitz.

[1] None of the suggestions in this article should be interpreted to constitute a statement of the legal standard of care.

[2] In trial, unless the judge disproves, I refer to opinions as “conclusions.” See David Ball on Damages (2d ed. 2005). For the purpose of this writing, however, I will refer to them as the more commonly used “opinions.”

[3] Now a part of Lexis-Nexis.

[4] So, for example, in a minimal property damage collision case, show your expert the photos of the involved cars.

[5] I try to ensure that everything I do in a courtroom leaves the fact-finder with the impression that I am the truth-teller.

[6] I had a case against a particularly crafty defense attorney who did not date his enclosure letters to his experts. I am convinced that he did this to mask the fact that he had filed his Expert Disclosure before providing the experts with the case materials. Unsurprisingly, at deposition his expert claimed ignorance about when he received the materials.

[7] Why fight an avoidable exclusionary battle?

[8] The Maryland analog, MRE 5-803 (18), is identical.

[9] See Boccaccini, M.T. (2002). What do we really know about witness preparation? Behavioral Sciences and the Law, 20, 161-189.

[10] This approach has worked for Mr. Wildberger, who suggested it to me.