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Your Case
September, 2005, Trial Lawyer Magazine, By Don Corson, OTLA President’s Club
- Use your contacts
- Other sources
- Expert witness services
- Preparing the witness
- Briefing the expert
- Face-to-face meeting
- Expert’s role
- Expert’s file
- Case management
- Conclusion
Years ago, I was trying my first case in Central Oregon. It was a difficult trial, for a Hispanic farm worker who had suffered an aggravation of pre-existing partial paraplegia. I had retained an economist on a recommendation, without doing much homework about him. I didn’t spend a lot of time working with him before trial, as he was much more experienced than I was. The defense slowed the trial down and destroyed my witness schedule, so we ended up doing a perpetuation deposition of the expert at night during the trial. The defense led the economist down a garden path I had never imagined, much less seen, before. It was such a disaster that I didn’t use the video.
Afterward, I knew I needed a better approach for finding and preparing experts. Legally, many cases need expert testimony for at least some elements of proof. Forensically, many more cases need expert testimony to explain and to persuade. It takes good judgment to be successful with experts. Where does a plaintiff’s lawyer find the right experts? How does one best work with expert witnesses?
Some experts come with the case — treating physicians in personal injury claims are an obvious example. But for most expert witness needs, one must determine what kind of expert testimony is needed or desired, contact potential expert witnesses, work with them to develop the case and then have them testify.
One of the most fundamental questions in preparing to try any case is what kind of expert testimony is proper and needed. Surprisingly, what is needed can sometimes be one of the more difficult questions to answer. We may not be aware of the kinds of people that could help us educate and persuade a jury. Limiting ourselves to the usual experts may limit our clients to the usual results. Creativity and sometimes just plain luck is often needed to find a more effective way to understand and present a case. Talk with other lawyers about the case for ideas and read trial lawyer publications to see how others have approached similar cases.
Use your contacts
But once it is clear what kind of experts are needed in a specific case, how does one find them? If a lawyer has practiced in a particular field for some time, he or she will have developed a personal list of experts from past cases, and perhaps have noted recommendations for other experts when they have been posted on the OTLA list serve.
But if someone new is needed, networking is the best way to find experts and learn something about them. Are they good teachers? How do they handle cross examination? What do they cost? Don’t expect every lawyer to disclose every expert. Some of this is a matter of building relationships and trading favors. Some experts have a limited litigation “shelf life,” and should not be overused. This is particularly true for many physicians who are still actively practicing medicine and who do only a limited amount of expert witness work.
To network, post an inquiry on an OTLA list serve. Call up a respected lawyer who has handled similar cases. Use the Exchange to identify relevant cases, see which experts were used, then contact the plaintiff’s attorney on the case. (If you are not an AAJ member, join; access to the Exchange and other national resources makes the membership cost-effective.) Join a pertinent AAJ litigation group, attend the group’s meetings to compare notes, and participate in the group’s electronic information sharing, if available. Associate with another attorney who has successfully handled the same kind of case. Check the jury verdict and arbitration reports, and call up successful lawyers to ask what experts they recommend.
Other sources
If networking fails to find the right expert, consider searching the internet. See who has published technical or scientific literature in the relevant field. Try computerized legal databases. Consider who advertises expert services in litigation periodicals.
Expert witness services
Then there is the option of expert witness services. These can save a great deal of time, for a price. There are general services that locate all kinds of experts and there are specialized services, most notably those that offer to find physicians for medical negligence cases. Sometimes a professional service can find an expert when all other searches have been unsuccessful. I once tried to develop a defective parachute case and found the industry to be so closed that virtually no one would talk to me. We spent tedious hours of cold contacts and following up on leads that turned out to be unsuccessful. To my surprise, a general service was promptly able to find a bright, experienced parachute design expert with multiple patents and great relevant experience.
If one decides to use an expert witness service, consider how that fact might come up and be handled during the trial. One standard cross examination question is to ask how the expert happens to know the lawyer. I’ve been surprised (and sometimes pleased) with some of the answers from adverse experts, which have included “he represented me in my last malpractice case” and “he’s my lawyer.” The defense would love to hear an answer from the plaintiff’s expert that might be used to make the witness sound like a hired gun. Some services are sensitive to how this question might come up in cross examination, and have physician-run services that do not tell the prospective witness whether the case is for the plaintiff or the defendant. The expert can truthfully say on cross examination that they were contacted by a fellow physician, and did not know which side wished to retain them when they first considered the potential case.
Preparing the witness
When the potential expert witness has been located, first examine the witness’s qualifications to determine if he or she is legally qualified to give opinion testimony. Then consider whether the expert’s opinions will be admissible under the applicable evidentiary standards. Next, think about how the expert will likely do on direct examination. This goes well beyond the obvious issue of whether the expert’s opinion is consistent with the theory of the case. How does the expert come across? Is the person a clear communicator? What kind of connection is there between the attorney and the expert?
No matter how or where one finds an expert, one must think through that witness’s vulnerabilities on cross examination. Consider all of the various techniques that may be used to impeach the witness. Does he or she testify for one side only? Has the expert ever testified to a contrary position? In federal cases, where extensive advance work can be done to prepare for expert cross examinations, a stack of prior deposition testimony can be lethal. But even in state court cases, this kind of impeachment can occasionally be done. Has the expert published opinions that are inconsistent with those to be expressed in the current case? With increased computerization in the courtroom, this can sometimes be developed at the last minute. Does the witness advertise his or her services, and if so, how and where? I’ve had many defense lawyers ask if my experts advertised in plaintiff lawyer publications.
There is a world of difference between an expert witness
who begrudgingly admits the bare bones to create a prima facie case
on an issue, and an expert who is so engaging that jurors find the subject
interesting and understandable. Some clues about this can be learned
from networking. Other information will emerge when one interviews the
expert. Unfortunately, some of this may be learned only in the heat
of trial.
Briefing the expert
Once an expert has been identified, an initial direct contact has been made (typically by phone call), and fees discussed, the next step is often to send a preliminary package of information to be considered by the expert. Send everything that will be needed for a fair initial evaluation. Provide a cover letter to give some orientation to the facts of the case. Give care to the content of the letter, assuming that it will be in the expert’s file in the courtroom during trial and that the judge may require disclosure to the opposing party.
Include in the cover letter that the injured person will request, if the case is meritorious, to seek compensation from the liability insurer for any legally responsible party. The reference to insurance reduces the chance that the letter would be shown or read by the adverse party at trial, although defense counsel may ask to redact the inadmissible material, and then use the edited letter. The letter should make it clear that any summary of the facts is for convenience only, and that the expert will rely solely on his or her education, skill, knowledge, experience, and the enclosed materials, and not on anything that the lawyer says. The letter should also confirm that the lawyer will pay for the expert’s time at his or her normal professional rates. Finally, if not done orally earlier, the letter should confirm that no written report is requested at this time, as is customary in Oregon practice.
After the preliminary review package is sent, it may be weeks or more before the expert is ready to talk. Be well-prepared for the consultation. Review all of the materials that were sent to the expert and try to understand them. Prepare a chronology. Formulate specific questions for the expert. Although the initial review is necessarily preliminary, be prepared to probe favorable opinions and test unfavorable ones. The expert may easily have overlooked favorable or unfavorable facts in the materials that were provided, and it is the lawyer’s job to make sure that those are fairly addressed.
Face-to-face meeting
It’s best to meet potential expert witnesses in person, well before trial. I once worked on a case in which I consulted two pediatric neuroradiologists by letter and by phone. Both had outstanding qualifications. Later, I met personally with each one. The first was cool, analytical and distant. The other was warm, caring and engaging. Although both had given favorable opinions on the phone, the difference was obvious in person. In another case, a toxicologist was experienced and good on paper, and his reviews checked out well. But it was only in meeting with him that we sensed that something was off. We then learned that he had suffered a brain injury in a terrible collision some months earlier. Unfortunately, that meeting was during the lunch hour when trial was in progress. It would have been far better to have met much earlier in the case.
Expert’s role
Assume for the moment that one has found a qualified expert who has a favorable opinion and who seems to have the necessary skills to be able to teach on direct examination and professionally concede what should be admitted on cross, but not more. How deeply should and will the expert be involved in the development of the case? Sometimes, an expert’s role may be to consult and advise, and not to testify. This may allow the lawyer to explore issues more freely with the consultant and perhaps receive in-depth expert assistance without running the risk that the testifying witness may look like an advocate instead of an independent expert. But keep the consulting expert away from the testifying expert, and avoid contacts between different testifying experts, so that the fact and the appearance of independence is maintained.
Expert’s file
In working with any expert who may testify at trial, be thoughtful about what is provided and thus should be in the expert’s file. Under Oregon’s trial procedures, the opponent’s review of an expert’s file is often one of the more fruitful sources of cross-examination materials. Don’t give the opponent ammunition. The classic case may be apocryphal, but there is a Lane County story of a soils engineer who had a list of questions and answers in his file. The entire trial suddenly became about the “script.” If the lawyer doesn’t want the jury to see or hear it, it should not be in a document given to the expert. On the other hand, the expert must be fully and fairly informed. It is the lawyer’s job to make sure that the expert is adequately prepared.
Case management
With busy experts, it can be difficult to get the expert to spend the time required and to focus on the facts of the case. Experienced experts know that most cases settle and may put off until near trial the tedious, time-consuming task of reading the deposition transcripts and reviewing other evidence. But the lawyer needs the expert to read those depositions before the pretrial preparation meeting or meetings. Make sure that the expert understands both the plaintiff’s theory of the case and the likely defense arguments and lines of cross examination. If there are multiple experts, avoid even small inconsistencies in opinions, if possible. It is the lawyer’s responsibility to avoid surprises for the expert.
Few expert cross examinations are more devastating than ones where the defense lawyer establishes that the plaintiff’s lawyer did not give the plaintiff’s expert a key document or some critical information, and the expert testifies that if he or she had known about it, the expert opinion would have been different. Suddenly, the expert who has been painstakingly qualified by the plaintiff is now testifying for the defense. To avoid this, provide the expert all of the relevant admissible facts and evidence, and prepare him or her for the probable cross examination areas.
Conclusion
Former Congressman Morris Udall once explained where he got his good judgment from: experience. And where did he get his experience from? Bad judgment, of course. Relying on our collective experience can help us all exercise good judgment, and have good luck, in our use of experts.
Don Corson is a former President of OTLA. He is a member of the OTLA President’s Circle at the President’s Club level. Don practices in the areas of personal injury, professional negligence and product liability at The Corson & Johnson Law Firm, 101 E Broadway Ste 303, Eugene OR 97401.
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