April 26, 2016
Originally published in Texas Lawyer, an ALM Media publication, April 20, 2016
*Part of the ALM family of award-winning legal products and publications.*
By: Quentin Brogdon
Expert witnesses can make or break a case. Trial lawyers thoroughly investigate opposing experts, but often fail to subject their own experts to that same high level of scrutiny. The consequence of hiring the wrong expert can include the striking of the expert, sanctions, massive wasted financial resources, and even the dismissal of a party’s claims or defenses. When it comes to hiring experts, an ounce of prevention is worth a pound of cure.
First, determine whether the headache of dealing with an expert is really needed. Even if experts are allowed to opine about an issue, you may not want to hire an expert if expert testimony is not required. The decision not to hire an expert may be based on considerations of expense, the potential for the expert to contradict other experts or fact witnesses, or a concern that the jury may not find testimony from a hired expert on the particular issue to be persuasive or credible.
Some issues generally are inappropriate for expert testimony. Texas courts have prevented experts from testifying about: 1. pure questions of law; 2. mixed questions of fact and law, if not confined to relevant issues and based on the proper legal standard; 3. subjects within the jurors’ common knowledge; 4. the truthfulness of a witness; 5. whether conduct is outrageous; and 6. the dollar value of love and affection.
If you must hire an expert, you can avoid much future aggravation by running from experts who: 1. act unethically; 2. have problems communicating; 3. have been struck by other courts; 4. have a criminal or disciplinary history; 5. have taken prior inconsistent positions under oath or in publications; 6. have only expressed opinions in the context of litigation; 7. have inappropriate internet postings by, or about them; 8. have promised expertise in an unrealistic number of different areas; 9. are evasive about case budgets or tasks to be performed; 10. are unwilling to comply with your guidance about their role in the case; 11. brag about verdicts they enabled or prevented through their brilliant testimony and expertise, 12. send spontaneous, ill-advised emails at every stage of their thought processes, 13. demand that you immediately file a motion to modify the scheduling order’s expert report deadline to fit their busy schedule; 14. make “promise the moon” statements, such as “I’m going to win this for you;” or 15. try to act as a lawyer or delve into settlement discussions or case strategy.
If possible, it is best to meet the expert before hiring him to assess first-hand how the expert carries himself. Is he able to make eye contact when speaking? Does he appear to be credible and persuasive? Can he teach the judge and the jurors by reducing complex concepts to understandable basics?
You can get answers to the hard questions during the initial interview of the expert, or you can hear the answers for the first time during the expert’s deposition. During the interview of the expert, ask pointed questions, such as:
1. “Are you the best expert for this issue?” Given a chance, credible experts who appear to be a perfect fit often will confess that they are not the right expert, and that another expert or another type of expert would be a better fit.
2. “What in your background, experience, and training enables you to express opinions about this issue?” A qualified expert cannot help if he cannot sell the judge and jurors on his qualifications. Think long and hard before you hire any expert who cannot even sell you on his qualifications.
3. “Have you ever been prevented from testifying in any case by a court for any reason?” If the answer is yes, ask for case styles, attorneys, and reasons that the expert was prevented from testifying.
4. “Do you anticipate any problem in getting your report done before the expert designation deadline?” If there is a problem, you want to know about it now, not on the eve of the deadline.
5. “What testimony, documents, and information will you need to formulate and support your opinions in this case?” Let the expert tell you before he is hired what discovery you need to undertake to support and bolster his opinions. Do not allow the expert to get struck simply because you did not complete the underlying discovery necessary to support his opinions. Likewise, you need to know at the outset if the expert has unreasonable or impossible expectations.
6. “Have you ever testified for or against the opposing party before?” If the other side is familiar with your expert, you want to know that now.
7. Ask about publications, prior testimony, internet references, speaking engagements,
advertisements, membership in professional organizations, criminal and disciplinary history, and past representations about areas of expertise.
8. “Are there other types of experts with whom you typically work on these types of cases?” You may be speaking to only part of an expert team—all of whom are indispensable.
9. Ask pointed Daubert-based questions about: 1. testing of the expert’s theory; 2. the theory’s potential rate of error; 3. whether the theory has been, or could be subjected to peer review; 4. whether the theory has been generally accepted as valid by the scientific community; 5. the extent to which the theory relies on the subjective interpretation of the expert; and 6. the non-judicial uses that have been made of the theory.
10. Ask about previous testifying experience, including case
styles, outcomes of cases, names of hiring and opposing attorneys, Daubert strikes granted, cases against your opponent, ratio of plaintiffs’ to defense work, and ratio
of litigation consulting work to other types of work.
11. Explain that you expect to hear any and all misgivings about the case, up front, and that you are not looking for an outcome-oriented review. You do not want to learn for the first time during your over-eager expert’s deposition that he has serious misgivings about your case.
12. Ask about the expert’s experience with the opposing side’s experts and his opinion of them. If the opposing side has hired your expert’s best friend, mentor, or former employer, you need to know that now. Likewise, if your expert seems intimidated by the names or credentials of the other side’s experts, you may want to consider hiring a different expert.
13. Ask how your expert prefers to receive documents and communications. Some experts prefer everything in electronic format, while others still want everything in paper format. If an expert cannot, or will not review paper or electronic documents, you need to know that now.
If you do find the right expert, do not set up the expert to fail after you hire him. Promptly notify him of deadlines for expert reports, Daubert hearings, trials, and other relevant activities in the case, and periodically remind him of forthcoming deadlines.
In dealing with experts, an ounce of prevention really is worth a pound of cure.Quentin Brogdon is a partner with Crain Lewis Brogdon in Dallas. He is board certified in personal-injury trial law by the Texas Board of Legal Specialization and in civil trial advocacy by the National Board of Trial Advocacy, and he is the vice president of the Dallas Chapter of the American Board of Trial Advocates. His email is firstname.lastname@example.org.
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