Neil Feldscher, CIH, CSP, Esq. and Chip Darius, MA, OHST

Transcription

1 Neil Feldscher, CIH, CSP, Esq. and Chip Darius, MA, OHST Types of Witnesses Rules for Expert Witnesses Different Rules, Roles & Expectations Serving as a Consultant or Expert Qualifications Experience vs. Expertise Sequence of Events CV Working with Client-Attorney Depositions Marketing 1

2 Lay Witness vs. Expert Expert Consulting Expert - Testifying Lay Witness rationally based upon their perception Expert Witness does not need to be based upon their perception and not even based upon admissible evidence a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. FRCP 26(a)(2)(A) 2

3 Testimony by Experts 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. F.R.E. 702 Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report prepared and signed by the witness if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain: FRCP 26(a)(2)(B) 3

4 (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the data or other information considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. 4

5 The Expert must have Reasonable Certainty in the Opinion, and there must be a Reasonable Probability that it is accurate LESS THAN Scientific Certainty MORE THAN Mere Speculation Bases of Opinion Testimony by Experts The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. F.R.E

6 Is the expert s opinion scientific, technical or other specialized knowledge? Will this opinion assist the trier of fact to understand the evidence? If based upon facts which are not admissible, are they of a type reasonably relied upon by experts? What do all these Rules of Evidence mean, and how do they work? Why do we care? As potential Experts, we may have wonderful p p, y opinions, but if ruled inadmissible the Jury will never hear them. 6

7 Frye v. United States 293 F (D.C. Cir. 1923) While courts will go a long way in admitting expert testimony deduced from a wellrecognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. The Impact of Daubert Procedural history of the case Established the Trial Judge in the role of Gatekeeper in determining the Admissibility of Scientific Expert Opinion Testimony FRE 702 replaces(?) the Frye (1923) General Acceptance Test 7

8 The Supreme Court s two-prong test for Admissibility: (FRE 702 interpretation) RELIABILITY (Scientific Validity) RELEVANCE (Fit to the Facts) Reliability: Is the reasoning or methodology underlying the opinion i testimony ti scientifically valid? Relevance: Can the reasoning or methodology properly be applied to the facts in issue? 8

9 Reliability: the 4 Factors 1. Is the opinion Empirically Testable? 2. Has the opinion or underlying theory been Published or subjected to Peer Review? 3. In respect to a technique, is the known or potential rate of error acceptable, and are there standards d controlling the technique? 4. Does the opinion, theory or method enjoy general acceptance within a relevant scientific community? 9

10 More on Reliability: Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test The inquiry envisioned by Rule 702 is, we emphasize, a flexible one Flexible Analysis Has expert unjustifiably extrapolated from an accepted premise to an unfounded conclusion (General Electric v. Joiner) 10

11 Flexible Analysis Whether the expert has adequately accounted for obvious alternative explanations. (Claar v. Burlington N.R.R.) Wide range of knowledge Generally familiar with many regulations Accepted as advisor Management defends and supports Advocate for Defends employer Workplace Limited area of knowledge Specifically familiar with few regs Challenged as expert Opposing counsel attacks and destroys Advocate for truth Defends facts Legal Arena 11

12 No special knowledge Testifies only to facts directly observed Testifies only to facts directly observed No opinions that require expertise Not compensated 12

13 Has knowledge beyond the ordinary lay person Testifies regarding an issue that requires expertise to understand Must be accepted by the court Allowed to give opinion testimony which a non-expert witness may be prohibited from testifying to Compensated Litigation Consultant Disclosed or non-disclosed Expert Witness Testify at deposition or trial All materials relied upon to form opinions are subject to discovery Expert testimony is subject to attack on cross- examination Seek to disqualify 13

14 Credibility Number of years of practice ce Work experience related to the case Publications: print, electronic Certifications, licensing Training, education Awards and peer recognition Impeachment Opposing counsel will attack Limitations in qualifications & experience Lack of confidence in opinions Lack of preparation for testifying Other opinions given publication or testimony Unreliability of expert's sources, tests, methods Not necessarily fatal 14

15 1. Be a real expert. Stick to what you know. 2. Tell the truth. You deserve to be nailed if you don t and your client doesn t deserve to win if you can t. - Logan L. Donnell, PE. In The Expert Witness Handbook, by Dan Poynter. Contact from potential client-attorney Brief description of case Send your CV and engagement letter Receive signed agreement, advance fee, case information Review what has been provided Request additional info as needed Keep E V E R Y T H I N G Conduct research 15

16 Contact client-attorney to discuss findings Ask if written report is required ed Prepare expert report Federal vs. State-specific language Submit to client-attorney Deposition Settlement or trial Testify in court Conclude case, resolve materials 1 or more than 1? Current and complete EVERY detail accurate No fluff or embellishment No mail-order credentials Avoid failure to disclose 16

17 Contact info Photo if professionally appealing Professional work experience Avoid results boasting Professional Development Military Experience Education Publications Books Journal articles (peer reviewed?) White papers Conference speaking engagements Conferences attended Magazines Newspapers, p periodicals, websites Awards 17

18 Diplomas Certificates Wallet cards Letters Achievement vs. Continuing Education You represent the facts. Who represents you? Pressure e from both sides Defendant or plaintiff? Retaining Opposing 18

19 Outside area of expertise Limited information o provided Conflict of interest Opinion formed by attorney Short time frame Honest boundaries of expertise Conflicts of interest Written agreement Advance fee / retainer Detailed, itemized monthly billing Adequate time to assess facts Access to all information 19

20 Be clear: what are you opining on? Perfection, ect not pounds Attention to detail Layout, font Spelling, grammar Understandable language Materials reviewed Materials relied upon Lasts forever Keep everything Formal Print Organize in a way/ways that you can find what you re looking for Every note, mark, highlight can be questioned Don t remove or hide anything Only case-related material Include all cover letters, invoices, s, correspondence, notes, sketches, 20

21 Opposing counsel has reviewed your report As serious as court Thorough preparation Everything counts: clothes, posture, voice, CREDIBILITY Remember your role Sworn in Opposing counsel is in charge Reporter captures every word Review and sign? Open season Tricky questions Tricky questions Artful answers 21

22 Wait for the whole question Answer only the question asked, then stop Educate but don t lecture Yes No Idon t know I don t understand Examination: by retaining counsel Cross-examination: by opposing counsel From the lawyer s perspective: It s not about safety. It s about winning the dispute. 22

23 Resolve case materials as stipulated in engagement g letter and as directed by retaining counsel It may not be over yet Letterhead, business cards Free websites Paid websites Directories print, electronic Legal conferences, CLE Professional referrals 23

24 Neil Feldscher, CIH, CSP, Esq. Chip Darius, MA, OHST 24