UNITED STATES TAX COURT JUDICIAL CONFERENCE. May 21, 2015 Duke University Duke Law Center for Judicial Studies

Transcription

1 UNITED STATES TAX COURT JUDICIAL CONFERENCE May 21, 2015 Duke University Duke Law Center for Judicial Studies

2 EXPERT WITNESSES CREATIVE APPROACHES PROS AND CONS PANELISTS: JUDGE MARY ANN COHEN JUDGE KATHLEEN KERRIGAN DAVE CURTIN, MORGAN LEWIS ROBIN GREENHOUSE, MCDERMOTT WILL & EMERY DANA HUNDRIESER, IRS OFFICE OF CHIEF COUNSEL 2

3 WHAT IS WRONG? HOW DO WE FIX IT? 3

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5 EXPERT WITNESSES-FRE 702 1) ASSIST TRIER OF FACT 2) WITNESS PROPERLY QUALIFIED 5

6 COURT HAS GATEKEEPING FUNCTION 6

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8 POINT OF VIEW OF JUDGE 8

9 - HOW RELIABLE IS THE WITNESS -HOW HELPFUL IS THE INFORMATION -IS THE WITNESS TOO ADVERSARIAL 9

10 VIEW OF PARTIES 10

11 -PRE-TRIAL RULINGS ON MOTIONS IN LIMINE MAY FACILITATE SETTLEMENTS -THE COURT S APPROACH TO VALUATION ISSUES MAY ENCOURAGE AGGRESSIVE POSITIONS BY EXPERTS 11

12 CREATIVE METHODS - TUTORIAL - COURT APPOINTED WITNESS - CONCURRENT WITNESSES 12

13 ARE DIFFERENT METHODS BETTER FOR DIFFERENT TYPES OF CASES? 13

14 EXPERT TUTORIALS WHAT ARE THEY? 14

15 Tutorials In the Tax Court: Are Tutorials a Good Idea? Tax Court history of use none? Limited use in tax refund cases Often used in IP litigation Who really benefits? Petitioner? Respondent? Trial judge? 15 15

16 Perceived Benefits Educate the trial judge Predispose the trial judge Early look at adversary s case Settlement incentive 16 16

17 Unnecessary Expensive Questionable benefits Possible harm Perceived Problems 17 17

18 Evidence & Discovery Considerations When? Early or close to trial date? Need for a stipulated and signed ORDER Typical terms On the record Who can present? Lawyers? Expert? Video? In court or chambers? Closed courtroom? Time limit and order of presentations Exclude trial witnesses? Experts? Not evidence No objections (and no waiver of objections) 18 18

19 Interaction with Tax Court Rules Rule 143(c): Ex parte affidavits or declarations, statements in briefs, and unadmitted allegations in pleadings do not constitute evidence. Rule 143(g)(1): Expert Witness reports are required [U]nless otherwise permitted by the Court upon timely request

20 Evidence & Discovery - cont d Impeachment material exception Tutorial video / transcript may be available to judge throughout the case Not discoverable tutorial preparation off-limits Discovery cut-out Leads for discovery? Can privileges be waived in tutorial? FRE 502 agreement and order necessary? 20 20

21 COURT-APPOINTED EXPERTS WHEN ARE THEY APPROPRIATE? 21

22 Rule 706. Court-Appointed Expert Witnesses (a) Appointment Process. On a party s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act

23 (b) Expert s Role. The court must inform the expert of the expert s duties. The court may do so in writing and have a copy filed with the clerk or may do so orally at a conference in which the parties have an opportunity to participate. The expert: (1) must advise the parties of any findings the expert makes; (2) may be deposed by any party; (3) may be called to testify by the court or any party; and (4) may be cross-examined by any party, including the party that called the expert

24 (c) Compensation. The expert is entitled to a reasonable compensation, as set by the court. * * * (d) Disclosing the Appointment to the Jury. The court may authorize disclosure to the jury that the court appointed the expert. (e) Parties Choice of Their Own Experts. This rule does not limit a party in calling its own experts

25 Perceived Benefits Assist judge Provide neutral expertise Settlement incentive 25 25

26 Perceived Problems Unnecessary Difficulty in selecting a truly neutral expert Expensive 26 26

27 Some Questions How is the court-appointed expert selected? Are ex parte communications permitted? Can the court-appointed expert submit rebuttal reports? Can parties move to strike the court appointed expert s report? Can the court-appointed expert give an opinion on the ultimate issue? 27 27

28 EXPERTS IN HOT TUB WHAT ARE THE RULES? 28

29 Perceived Benefits Efficiency Reduce court time and costs associated with presenting expert evidence Improved quality and accuracy of the experts testing and more impartiality Encourage settlement 29 29

30 Perceived Problems Emphasis on personality traits when selecting an expert Experts lack of training in civil procedure, concepts of relevance or admissibility of evidence Increased cost of preparing experts Counsel lose control over the presentment of testimony 30 30

31 Some Questions on Hot-Tubbing 1. Can one or both parties request hot tub procedure? 2. At what stage should the Court provide notice to the parties that hot tubbing will be used? 3. Can the Judge order hot-tubbing over the parties objection? 4. When can hot-tubbing take place? Before trial? During? 5. Should the Court enter an order? 6. What do the rules provide? 31 31

32 The Rules: Rule 143(g): Expert Report is Direct Testimony Expert s report is direct testimony In Court s discretion to allow additional direct testimony Are the experts in the tub on direct, cross or both? 32 32

33 The Rules: Testimony In Court Rule 143(a): Trials by same rules as U.S. District Court in DC Has the U.S. District Court in D.C. approved tubbing? Rule 143(b): Testimony in open court and on record 33 33

34 The Rules: Federal Rules of Evidence Rule 611: Mode and Order of Examining Witnesses and Presenting Evidence Court controls Protect witness How much notice required? The need for an Order: Some essentials On the record and under oath Objections to Judge s questions permitted (i.e. hearsay, scope) One speaker at a time Counsel right to question to clarify Is the tub-transcript evidence? Length of tub session? 34 34

35 What about the Lawyers? Taken from A Dip in the Hot Tub Concurrent Evidence, Journal of Taxation, October 2012, pp. 1 and 14. The concurrent evidence approach (more colloquially, the hot tub method footnote omitted) rejects the pure lawyer-driven adversarial nature of eliciting expert testimony, and instead embraces methods that unite the conversational element of some alternative dispute resolution procedures with the inquisitorial element of some other legal systems litigation models. In order to have the most productive (and civilized) conversation, it is best to leave the lawyers out of it