HOW TO BE A SUCCESSFUL EXPERT WITNESS

Transcription

1 HOW TO BE A SUCCESSFUL EXPERT WITNESS copyright March 2015 David J. Shuster, Esquire Kramon & Graham, P.A. One South Street, Suite 2600 Baltimore, Maryland Direct: (410) Office: (410) Fax: (410) dshuster@kg-law.com

2 Even seasoned experts can become entrapped in pitfalls This presentation will cover some of the common mistakes that expert witnesses make Audience participation is encouraged; therefore, please ask questions as they arise

3 Overview Preliminary communications Engagement Development of opinions Deposition and Trial Testimony

4 Preliminary Communications Assume everything is discoverable Maintain formality Beware of TMI Staying within the scope

5 Best Practices Use written communications ( ) only when necessary Observe formalities (e.g., Dear Mr. Jones, not Hi Tom ) Avoid appearing overly helpful, overly eager, or biased

6 Hi Tom, I would love to work on this case because I have never done one of these before, but I think I could really help you out in this case. I look forward to hearing back from you. If you need me to reduce my hourly rate, let me know. Joe

7 Hi Tom, Here is my report. As you can see, I did my best to pump up the damages. If you want me to increase the total, let me know. Joe

8 Engagement Expert v. Consultant Written Engagement Agreement Your File

9 Development of Opinions Access to the right information Reports Witness disclosure

10 Development of Opinions (Cont d) Credibility Determinations a word of caution Reports and source data Narrative should include your methodology Narrative should include the information on which you relied Narrative should make it clear that your opinions may change or be revised in the event you are given additional information to review or consider

11 Depositions & Trial Testimony Purpose of Deposition Scope

12 Sneaky Questions Do you hold yourself out as an expert? Have we discussed all of your opinions? You agree that Mr. Smith is a well-respected expert in this area? Have you ever been sued for malpractice? Has your firm ever been sued for malpractice involving work that you performed? BIG QUESTIONS What are your opinions in this case? Why do you believe Mr. Smith would have earned $1.2 million dollars had he survived? Didn t you know his business was on the verge of bankruptcy? Didn t you know that his employer had put him on probation? Did it concern you that...

13 Important to meet Preparation Prep session is discoverable Identify the information you reviewed Check the work of associates who performed calculations for you

14 THE INTANGIBLES OF SUCCESSFUL EXPERT WITNESSES likeability professorial tone / never flustered well prepared thoughtful / simple explanations firm but not argumentative or defensive juries don't like witnesses who act like lawyers do not fall into the "yes" trap revert to the report own your answer

15 CONCLUSION

16 Questions and Comments David J. Shuster, Esquire Managing Principal One South Street, Suite 2600 Baltimore, MD 21202

17 Federal Rule 26(b)(4) Trial Preparation: Experts. (A) Deposition of an Expert Who May Testify. 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. (B) Trial-Preparation Protection for Draft Reports or Disclosures. 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. (C) Trial-Preparation Protection for Communications Between a Party s Attorney and Expert Witnesses. 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: (i) relate to compensation for the expert s study or testimony; (ii) identify facts or data that the party s attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party s attorney provided and that the expert relied on in forming the opinions to be expressed. (D) Expert Employed Only for Trial Preparation. 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. But a party may do so only: (i) as provided in Rule 35(b); or (ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.

18 Md. Rule 2-402(g) Trial preparation -- Experts. (1) Expected to be called at trial. (A) Generally. A party by interrogatories may require any other party to identify each person, other than a party, whom the other party expects to call as an expert witness at trial; to state the subject matter on which the expert is expected to testify; to state the substance of the findings and the opinions to which the expert is expected to testify and a summary of the grounds for each opinion; and to produce any written report made by the expert concerning those findings and opinions. A party also may take the deposition of the expert. (B) Additional disclosure with respect to experts retained in anticipation of litigation or for trial. In addition to the discovery permitted under subsection (g) (1) (A) of this Rule, a party by interrogatories may require the other party to summarize the qualifications of a person expected to be called as an expert witness at trial and whose findings and opinions were acquired or obtained in anticipation of litigation or for trial, to produce any available list of publications written by that expert, and to state the terms of the expert's compensation.

19 Federal Rule 26(a) (2) Disclosure of Expert Testimony. (A) In General. In addition to the disclosures required by Rule 26(a)(1), 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. (B) Witnesses Who Must Provide a Written Report. 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: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data 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.