September 20, 2012

COMMANDMENTS OF EXPERT CONSULTING AND

COMMUNICATIONS WITH COUNSEL

KELLY DOBBS BUNTING, ESQUIRE, Greenberg Traurig

CHAD L. STALLER, J.D., M.B.A., M.A.C., A.V.AThe Center For Forensic Economic Studies

The Top 10 Questions When Using an Expert Witness__________________________

Do I even need an expert?

#1

Expert’s opinion based upon background, training, and experience will assist trier of fact

Add valuable testimony which assists in the presentation of the case-in-chief or rebut claims made by opposing side

Value added service

Why use an expert????

What kind of expert do I need?

#2

They are small boutiques with a limited selection of goods and services.

Not using any expert is better than using an unqualified expert.

Experts Are Not Department Stores.

#5

#3WHAT RULES APPLY TO EXPERT TESTIMONY?

____________________________The general principles oflaw governing the use of

expert witnesses

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702

(1) whether the theory or technique about which the expert is testifying can be or has been tested;

(2) whether the object of the testimony “has been subjected to peer review and publication;”

(3) the known or potential rate of error of the theory or technique;

(4) the existence of standards and controls; and (5) general acceptance in the relevant scientific

community (no longer the sole factor but “can yet have a bearing on the inquiry”)

Federal Court: The Daubert Test

If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

Pa. R. Evid. 702

In order for expert testimony to be admissible, “the thing from which [the expert testimony is deduced] must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”

State Court: The FryeTest

How do I find an expert?

#4

Credibility Integrity Demeanor Personality Experience Technical Prowess

Selecting Your Expert

Expert opinion must be consistent with ◦ Applicable professional standards◦ Facts of the case: there is no absolute truth, only

a rational explanation of the occurrence◦ Juror’s common sense and life experience◦ Scientific rigor

Forming the Opinion

Basis for opinions: qualitative and quantitative

Sufficient explanation to allow reproduction of calculations by qualified individuals

Assumptions and their basis

Expert Opinions Contain

A collection of technicalities A group of unsupported declarations Derived from unsupportable assumptions

provided by counsel A simple list of methods and figures

An Opinion Is Not

How do I preserve privilege in my

communications with the expert?

#5

The common law—as interpreted by the U.S. courts in the light of reason and experience—governs a claim of privilege unless any of the following provides otherwise:◦the United States Constitution;◦a federal statute; or◦rules prescribed by the Supreme Court.

F.R.E. 501

But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

F.R.E. 501 (cont.)

In re: Cendant Corp. Securities Litigation, 343 F. 3d 658 (3d Cir. 2003)◦ It is true that in some cases the attorney-client privilege may

be extended to non lawyers who are employed to assist the lawyer in the rendition of professional legal services. This extension of the privilege to non lawyers, however, must be strictly confined within the narrowest possible limits consistent with the logic of its principle and should only occur when the communication was made in confidence for the purpose of obtaining legal advice from the lawyer. If what is sought is not legal advice or if the advice itself is the accountant's rather than the lawyers, no privilege exists.

U.S. v. Patrick J. Roxworthy, in the capacity of Vice President, Tax Yum! Brands, Inc. (6th Cir. No. 05-5776, August 10, 2006

Attorney-Client Privilege and Non-Lawyers

Permits government to withhold documents containing “confidential deliberations of law or policymaking, reflecting opinions, recommendations, or advice.”

Privilege’s purpose is to “prevent injury to the quality of agency decisions.”

What is notprotected:◦ Factual information, as long as it is severable from

the confidential deliberations◦ Communications made after the agency makes its

decision

Federal Common Law Privileges: Deliberative Process Privilege

Redland Soccer Club, Inc. v. Department of the Army of the United States, 55 F.3d 827, 853 (3d Cir. 1995)

Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:◦ they are otherwise discoverable under Rule 26(b)

(1); and◦ the party shows that is has substantial need for

the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

F.R.C.P. 26(b)(3)

Rule 26(b)(1) describes the general scope of discovery.

A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.

F.R.C.P. 26(b)(4)(A): Depositions of Experts Who May Testify

Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.

F.R.C.P. 26(b)(4)(B): Trial-Preparation Protection for Draft Reports or Disclosures

Rule 26(a)(2) refers to disclosure of expert testimony.

Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

F.R.C.P. 26(b)(4)(C): Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses

Rule 26(a)(2)(B) refers to experts who must provide a written report

relate to compensation for the expert’s study or testimony;

identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or

identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.

F.R.C.P. 26(b)(4)(C): Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses (cont.)

Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial.

F.R.C.P. 26(b)(4)(D): Expert Employed Only for Trial Preparation

But a party may do so only:◦as provided in Rule 35(b); or◦on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.

F.R.C.P. 26(b)(4)(D): Expert Employed Only for Trial Preparation (cont.)

Rule 35(b) refers to reports of physical and mental examinations

Work prepared in anticipation of litigation by an attorney or his agent is discoverable only upon a showing of need and hardship;

“Core” or “opinion” work product that encompasses the “mental impressions, conclusions, opinion, or legal theories of an attorney or other representative of a party concerning the litigation” is “generally afforded near absolute protection from discovery.”

Two-Tiers of Protection for Work Product

In re: Cendant Corp. Securities Litigation, 343 F. 3d 658 (3d Cir. 2003)

Privileges as they now exist or may be modified by law shall be unaffected by the adoption of these rules.

Pa. R.E. 501: Privileges

In a civil matter, counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.

42 P.S. § 5928: Attorney-Client Privilege—Civil Matters

Protects same categories of documents protected by federal deliberative process privilege

To claim the privilege, the government must show that◦ (1) the communication was made before the deliberative process

was completed and

◦ (2) the communication was deliberative in character, i.e., it was a direct part of the deliberative process in that it made recommendations or expressed opinions on legal or policy matters. Id. Information that is purely factual, even if decision-makers

used it in their deliberations, is usually not protected.

Deliberative Process Privilege

Unified Judicial System v. Vartan, 557 Pa. 390, 399, 733 A.2d 1258, 1263 (1999)

Self-Critical Process Privilege◦ Not well-defined and not generally recognized◦ Grounded on the premise that disclosure of documents

reflecting candid self-examination will deter or suppress socially useful investigations and evaluations or compliance with the law or professional standards.

◦ Party asserting privilege must show that: the information must result from critical self-analysis

undertaken by the party seeking protection; the public must have a strong interest in preserving the

free flow of the type of information sought; and the information must be of the type whose flow would

be curtailed if discovery would be allowed.

Other State Privileges that May Apply to an Expert or Consultant

Van Hine v. Comm. State Dep’t, 856 A.2d 204 (Pa. Commw. 2004)

How do I talk to the expert?

#6

This case is going to settle You don’t need to know that Can you do it for less? The lawyer on the other side doesn’t

understand the issues Can you do it this way, just this once?

Words Experts Hate To Hear

No secrets. Bad facts can have explanations, but theories that ignore bad facts cannot be explained (especially at trial)

Consultation◦ Document production◦ Interrogatories◦ Deposition

DISCOVERY

#7HOW DO I QUALIFY MY EXPERT?

____________________________

Helpful hints on making it through qualification

Voir Dire◦ Establish Trust◦ Establish Role◦ Establish Tone

Tell the jury how you will meet its expectations of what an expert can contribute. This is the expert’s chance to sell himself / herself to the jury.

Trial Testimony

#8HOW DO I PREPARE AND CONTROL MY EXPERT?

___________________________

The proper presentation of the expert

Blah, Blah,Blah,

Blah…

Present a logical, compelling and coherent theory that makes sense

Provide enough detail to prevent the jury from inferring information that would be harmful

Fully explain technical concepts that are critical to understanding the opinion

Direct Examination

Acknowledge warts Allow the Q & A to flow: avoid long

narratives, avoid rapid fire short answers to long questions

Teach the jury: look for understanding Reduce the conflicts facing the jury Use visuals—created on the spot if

possible

More Direct

Be decisive Emphasize accuracy and certainty Maintain eye contact with jurors Avoid jargon

Still More Direct

Use redirect to explain issues left unsaid

Stay away from problem areas

Read cues from the testifier

Redirect

How do I cross-examine the other

side’s expert?

#9

Strategic Decision—understand the opinion or destroy it

Gather information as a basis for trial—define four corners of opinion

Don’t over-depose—surprises can be fun

Depositions

Confuses the story Technically correct but

immaterial Appears to be quibbling Is argumentative Fails to take jury to a new place

Bad Cross Examination

E.G., attack on credentials◦ “Do you advertise?”◦ “Have you published?”

Correct But Often Pointless Expert Witness Cross-Examination

Opens big, wide door for opposition to tell its story, e.g.◦ “Please explain to me how you arrived at…”◦ “Why did you assume…”

Disastrous Expert Witness Cross-Examination Questions

Short Issue-oriented Exposes illogical thinking Reveals lack of factual/scientific

knowledge Avoids nit picking Sets up your expert

Good Cross Examination

TELL YOUR STORY VIA OPPOSING WITNESS◦ “I want you to assume….”

Good Damages Cross: “YOU tell MY story.”

#10What Does My Expert Need to do to Impress the Judge and Jury?

____________________________Creative uses of experts

to win your case