EXPERTS ON EXPERTS
WRITTEN MATERIALS
PREPARING TO DEPOSE THE OTHER SIDE’S EXPERT
Kelly Anne Luther, Esquire
Kasowitz Benson Torres & Friedman LLP
Miami, FL
Determining who the other side’s experts as early as feasible is critical. The sooner you know who they are, the sooner you can start digging into their background. If the expert has significant experience testifying, there will likely be a lot of information that you need to digest before you depose that person.
In doing your background search on the expert, you have a multitude of tools at your disposal. If you are in a jurisdiction where initial disclosures are not mandatory, you should consider filing a motion for entry of a scheduling order that controls the information required in the disclosure and latest date by which experts must be disclosed. Staggering the dates of disclosure for plaintiff’s experts, defense experts and rebuttal experts is a good idea. That will give you a chance to see what the other side is doing before you disclose. This does not mean that you should wait to identify what areas of expertise you will need to prosecute or defend the case. To the contrary, that exercise should take place from the moment the case comes in the office.
If expert witness disclosures are not mandated by a rule of procedure or scheduling order, you should propound expert witness interrogatories and a request for production to discover just by way of example, the names and addresses of your opponent’s experts, the totality of the opinions they intend to offer and the bases therefore, their employment history, their prior experiences as an expert witness including a case list, their compensation, their publications, if possible, how much they have made testifying and if not, the percentage of their total compensation they receive for testifying and what percentage of their time is spent testifying.
Once you know who the experts are, you should perform queries through Westlaw, Lexis/Nexis, Expert Research on Demand (formerly known as IDEX) and Google and look at all the information elicited from those searches. To the extent available, you should also utilize databases available through professional associations such as the IADC and DRI. Check to see if the expert is the subject of a legal decision. Check to see if the expert or his company has a website. Check social media such as FaceBook and LinkedIn. You should also perform searches with law enforcement to ensure that the expert has never been convicted of a crime.
You should review the expert’s curriculum vitae and obtain copies of all publications that may even remotely pertain to the subject matter of your litigation. To the extent the expert has given lectures/seminars, you should also try to obtain the video or a transcript of the lecture/seminar itself and any written materials that may have been distributed. You should also learn everything you can about the sponsoring organization and any limitations placed on attendance (i.e., were only plaintiffs’ attorneys allowed to attend and were they required to sign a non-disclosure statement regarding the content of the seminar/lecture).
You can also potentially expose an expert’s biases through the organizations/professional associations to which he belongs. You should check to see what the goals of the various organizations/ professional associations are and whether they have taken any positions on the subject matter of the lawsuit. It is also important to determine whether the expert has now or ever has had a leadership role in the organizations/ professional associations.
You should obtain copies of expert disclosures and expert reports for this witness from other cases. Through that you can evaluate whether he has ever taken a position contrary to the position he is taking in your case, or alternatively, whether he has always taken the same position regardless of the facts of a given case. For the same reasons, you should also obtain and review deposition and trial testimony from other cases.
These are just some suggestions of what you can do to investigate opposing experts to enable you to expose any biases and weaknesses in their opinions when you take their depositions. Since the other side will likely perform as vigorous an investigation of your experts, it is critical that you know what they are going to find in connection with your experts before you disclose them.
TIPS FOR THE EFFECTIVE PREPARATION OF YOUR OWN EXPERT FOR DEPOSITION
Andrea Tecce
Navigant
Washington, D.C.
Finding an expert who can create strong and supportable analysis is only the first step of getting ready for a deposition. It is important for attorneys and their experts to make intelligent decisions about processes and procedures before the expert begins their work and to take the time to effectively prepare for deposition questioning. Here are some suggested practices for deposition preparation that experts have found to be useful:
1. Your expert should review their report and attachments and be prepared to explain their results, sources, opinions and assumptions paragraph by paragraph. They should consider whether short or long explanations are more effective. Your expert should be familiar with reports from opposing experts and be prepared to address relevant topics raised by opposing experts in their reports.
2. Let your expert know if there are points the opposing attorneys might try to make in the deposition that extend the boundaries of the analysis at issue. It is easier for an expert to give confident answers if they have an idea when a line of questioning is likely outside the scope of the analysis.
3. Help limit the areas where your expert needs to have an opinion or a response. This can help your expert deal with questions about legal interpretations or questions that pose unexamined hypotheticals or potential modifications to the expert’s analysis.
4. Know the bounds of your expert’s qualifications and do not expect them to opine in an area where they are not an expert.
5. Have your expert take as much ownership of their procedures and assumptions as possible.
6. In some cases, disputes between experts center on the quality of the data used as the foundation for the analysis. If possible, have your expert independently review the data so that they can either independently support it, or evaluate its validity.
7. Have your expert know their credentials and why they are qualified to offer an opinion on the subject at hand.
8. Do not leave deposition preparation until the day before the deposition. Preparing earlier allows time to address areas of further study or questions that would be helpful to research.
9. Educate your expert on local rules for deposition such as objections, speaking objections, breaks, and discussions during breaks.
PREPARING YOUR EXPERT FOR A DAUBERT/FRYE CHALLENGE
Mark Surprenant, Esquire
Adams & Reese LLP
New Orleans, LA
From your very first interview with your testifying expert be cognizant of that day when you will be drafting your opposition to the other side’s motion to strike your expert. It is very important that you discuss with your expert from the outset that such a challenge will probably be made and what the court will ultimately focus on in making its decision.
Your expert must fully understand that the methodology used by him to arrive at his opinions must be scientifically reliable (Daubert) or be generally accepted within the applicable scientific or medical community (Frye). As the lawyer, you have the responsibility to make sure that your expert’s file clearly reflects that the legally required methodology was used by him. Challenge your expert at all points during the litigation as to exactly what methodology is being used by him and make sure you feel totally comfortable at all times, based on controlling jurisprudence,that you will be able to defeat the motion to strike.
Always work closely with your expert so that you will hopefully never have to explain to your client why you just lost your expert for trial and what that now means for your case.
SUCCESSFULLY DAUBERT/FRYE STRIKING THE OTHER SIDE’S EXPERT
Initially, the odds are usually stacked against your successful challenge to the other side’s expert. However, there are a number of steps you can take to increase your chances of prevailing.
Importantly, as discussed in detail above, before you depose the opposing expert, it is essential that you do as thorough a review of that expert as possible to give yourself your best opportunity to prevail on the Daubert/Frye motion. You should work from the beginning of the case with your in-house and outside experts to explore ways in which the opposing expert can be attacked. In addition, you need to decide whether you will use your own testifying expert to provide testimony during the Daubert/Frye hearing or whether it is strategically preferable to retain another expert just for use in connection with your Daubert/Frye challenge.
You should always check the Daubert/Frye track record of the applicable trial judge to see what may have successfully worked in the past. Moreover, make sure you have an excellent understanding of the applicable case law so you will know what has and has not worked for other lawyers in the past in similar situations.
Finally, make a realistic assessment of your chances of prevailing on your motion to strike before you plan your Daubert/Frye hearing cross examination of the expert. You need to decide what ammunition you will use against the expert on cross at the Daubert/Frye hearing and what you will hold back for use during your cross examination at the trial on the merits in the event your motion is denied. If you do not strike this expert, you do not want to have given him and your opposing counsel a clear road map of your trial cross examination.
SELECTION OF COMPANY “EXPERT” WITNESS FROM THE IN-HOUSE PERSPECTIVE
Adrienne Gonzalez, Esquire
Senior Counsel, Litigation & Government Investigations
Bristol-Myers Squib Company
Plainsboro, N.J.
Both in-house and outside counsel agree that the manner in which a witness presents themselves on the stand (separate and apart from their substantive testimony) is as important — if not more so — to their effectiveness to the case. It is not unheard of for an individual with sterling credentials to alienate a jury because their demeanor and/or attitude made them unlikeable prompting the jury to ignore their testimony or worse, find them untrustworthy. This dynamic is a concern in any litigation but is particularly concerning in a product liability case where the plaintiff has alleged a life-changing, sometimes catastrophic injury. The natural human tendency is to feel sympathy and therefore a possible greater connection with the injured plaintiff rather than the corporate defendant whose “human face” is often just their outside legal counsel.
When the situation calls for a company witness to affirmatively testify on behalf of the corporation, the inquiry cannot begin and end with simply identifying the subject matter expert. Presentation style must be properly considered and those who possess the greatest knowledge of the topic may not necessarily be the best person to present the information on behalf of the Company. To this point, in-house counsel must do their part in evaluating their colleagues through this particular lens and recognize when a decision must be made in selecting one colleague over another. It will matter little that colleague Mary Smith is the walking encyclopedia on the issue if she cannot connect with the jury. And this consideration is not one that should be set aside until you’re actually preparing for trial, lest you find yourself conducting a jury exercise — after the discovery deadline has long since passed — and hearing mock jurors confirm what you might have realized earlier in the process (and when you could have identified a more jury friendly colleague to speak to the particular subject matter).
Those of us who have done trial work recognize that juries tend to view corporations as ivory towers rather than a collection of people who are just like them: going to work every day and trying to do their best. Therefore it is important that the relatable human touch is factored into decisions about affirmative company witnesses (be they expert or fact witnesses) before the team is in pre-trial mode and realizing at the 11th hour that their chosen individual may not in fact present a face of the Company that a jury will love.