Attorney s BriefCase Beyond the Basics E W EXPERTWITNESSES IN FAMILY LAW CASES Objectives Do you need an expert? Is expert testimony even admissible? What constitutes an expert? Selecting the proper expert. Qualities of an effective expert. Working with your expert. Disclosure of experts. Rebuttal experts. Deposing experts. Experts at trial. 2 When do you need an expert? Evid. Code 801: "If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond common experience that t the opinion i of an expert would assist the trier of fact... Key: Must be beyond common knowledge and assist trier of fact. 3 2014 Attorney s Briefcase, Inc. 1
Client s testimony may be sufficient Spouse may offer competent opinion of: Value of own property, or Value of spouse s property. Evid. Code 813 But not its value for a specific use. L.A. City High School Dist. v. Rodriguez (1955) 135 Cal.App.2d 760. Ability of spouse to work. Bruce v. Astrue (9th Cir. 2009) 557 F.3d 1113 4 Is Expert testimony needed? Health of self or spouse. Jordan v. Great Western Motorways (1931) 213 Cal. 606. Handwriting of spouse. Evid. Code 1416. Mental condition of party or spouse. People v. DeSantis (1992) 2 Cal.4th 1198. Valuation of common automobiles. Kelley Blue Book (www.kbb.com) In re Mitchell (9th Cir. 1992) 954 F.2d 557. In re Marriage of Rosen (2002) 105 Cal.App.4th 808. 5 6 California Law: Is Expert opinion admissible? Can a legal Expert express an opinion on the enforceability of a CA prenup? NO! In re Marriage of Dick (1993) 15 Cal.App.4th 144, 157: [T]he general rule is that expert testimony on domestic law is usually inadmissible. A psychotherapist's actual belief or prediction. NO! Ewing v. Northridge Hosp. Med. Center [Ewing II] (2004) 120 Cal.App.4th 1289 The mind-set of a psychotherapist can be determined by resort to common knowledge. 2014 Attorney s Briefcase, Inc. 2
Credibility? People v. Johnson (1984) 38 Cal.App.3d 1. Is Expert opinion admissible? How people see, hear and perceive things, and their reactions to them? Westbrooks v. Cal. (1985) 173 Cal.App.3d 1203 Within common experience. Marital relations and make-up consensual sex. People v. Sandoval (2008) 164 Cal.App.4th 994. Would not aid in understanding the concept nor in determining wife's credibility. No! 7 What constitutes an Expert? 8 Evid. Code 720: A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. What constitutes an Expert? It is not a person's reputation for superior sagacity, judgment, and reasoning power that makes him an expert It is rather that his professional pursuit, peculiar skill, and knowledge in some department of science enable him to draw an inference that ordinary persons could not draw. (Vallejo & Northern R. Co. v. Reed Orchard Co. (1915) 169 C. 545) 9 2014 Attorney s Briefcase, Inc. 3
Experience: What constitutes an Expert? Salesman for product may testify on value of product. Need not be professional appraiser or have special training. Naples Restaurant, Inc. v. Coberly Ford (1968) 259 Cal.App.2d 881. Dog trainer who had no academic training gqualified as expert based upon occupational experience. People v. Malgren (1983) 139 Cal.App.3d 234. Fingerprint comparison. May be based solely upon training and experience, with no particular degree required. People v. Stuller (1970) 10 Cal.App.3d 582. 10 What constitutes an Expert? Testifying for first time? No problem. McCleery v. Bakersfield (1985) 170 C.A.3d 1059, 1066 : A court should not exclude one from testifying because he has never testified before. If this were the practice of all courts, there would be no experts. On the other hand, the court should not disregard the factor entirely. 11 What constitutes an Expert? Testifying for first time? When a proposed expert has not been qualified before, the court should take a closer look at his qualifications; however however, primary reliance should not be placed on the fact that this will be his first time on the witness stand. To do so would deprive the court and the parties of valuable testimony of qualified experts. 12 2014 Attorney s Briefcase, Inc. 4
13 Selection of Expert Find someone knowledgeable about this issue/business. Valuing a financial institution? Find someone with experience and expertise in similar financial institutions. A CPA may have experience valuing small professional practices, but how does that constitute special knowledge, skill, experience, training, or education to render opinion on financial institutions? Many F/L judges will permit Expert to testify But give opinion very little weight. Selection of Expert Hugely important. If Expert not credible, difficult to prevail on that issue. Sometimes difficult to find competent expert. Need to vet before retaining. Have they dealt with this issue before? Ask for references. What is their view on the issue? If you are seeking an Expert on goodwill for non-operating spouse Don t retain an expert who doesn t believe in goodwill. 14 Selection of Expert Qualities of a good Expert witness: Competent Experienced Credible Articulate Reasonable Unsupportable opinions are not helpful Appearance of impartiality But sympathetic 15 2014 Attorney s Briefcase, Inc. 5
Selection of Expert Valuing a business? If possible, get someone who makes his/her living buying and selling this type of businesses. They are usually very persuasive. 16 Consultant or Expert? A consultant s identity, work papers and opinion are protected as attorney work product. But, when it becomes reasonably certain an expert will give a professional opinion as a witness on a material matter in dispute, then the opinion becomes a factor in the cause. Then can be subjected to pretrial discovery. 17 18 Working with your Expert Your role: Define the assignment. Precise task. What date of valuation? Ask Expert what information/documents are required. Get them. Discuss alternative methodologies. Direct tracing. Exhaustion tracing. Pereira Van Camp 2014 Attorney s Briefcase, Inc. 6
Working with your Expert Discuss assumptions: Timing of deposits/expenditures Gaps in tracings Capitalization rates (multiples) Time period to measure income/expenses Avoid landmines: Publicly traded P/E ratios Future income Extreme opinions 19 Working with your Expert Have your expert help you prepare to depose other expert. And examine him/her in trial. Work with your expert to bolster weak areas of his/her report. Make certain that you understand bases for opinion to avoid surprises at trial. 20 Working with your Expert Be careful about letters or notes in expert s file. All are discoverable. Avoid copying expert on emails/tactical memos. Letter from you saying that you really want a high value not likely to help persuade trier of fact of expert s impartiality. Draft reports. Also discoverable if in file. 21 2014 Attorney s Briefcase, Inc. 7
Disclosure of Experts Code Civ. Proc. 2034.210: After the setting of the initial trial date for the action, any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each other's expert trial witnesses to the following extent: (a) Any party may demand a mutual and simultaneous exchange by all parties of a list containing the name and address of any natural person, including one who is a party, whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial. 22 Disclosure of Experts (b) [T]he designation of that witness shall include or be accompanied by an expert witness declaration under Section 2034.260. 23 Disclosure of Experts (c) Any party may also include a demand for the mutual and simultaneous production for inspection and copying of all discoverable reports and writings, if any, made by any expert described in subdivision (b) in the course of preparing that expert's opinion. 24 2014 Attorney s Briefcase, Inc. 8
Disclosure of Experts Information that must be exchanged (CCP 2034.260) Expert Witness Declaration: Expert s name and address. Expert s qualifications. General substance of the testimony that the expert is expected to give. Representation that the expert has agreed to testify. 25 Disclosure of Experts More information that must be exchanged: Representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including any opinion and its basis, that the expert is expected to give at trial. Expert's hourly and daily fee for providing deposition testimony and for consulting with the retaining attorney. Discoverable writings, if requested. 26 Disclosure of Experts Remember: Disclosure is mutual and simultaneous. Don t forget your own disclosure. Expert s testimony is limited to issues disclosed in Expert Declaration. Failure to Disclose: Requires leave of court. Expert may be precluded from testifying. How about designating Expert as a rebuttal expert? 27 2014 Attorney s Briefcase, Inc. 9
Rebuttal Experts (CCP 2034.310) 28 You may call an undesignated expert as a rebuttal witness to impeach the testimony of other party's expert witness. Rebuttal Expert may testify to the falsity or the nonexistence of a fact used as the foundation for an opinion by another expert. But an undesignated expert witness may not contradict the opinion itself. May not express own opinion on ultimate issue. Deposition of Experts Should you depose the opposing experts? Absolutely! Prof. James Hogan, Reporter for the Discovery Act: [Once other side names an expert, you] must gear up for the cross-examination of that expert and must marshal evidence to rebut his opinion. If anything, the need for pretrial discovery as an aid to the preparation of cross-examination and rebuttal is greater with respect to the expert witness than it is in the case of an ordinary fact witness. 29 Deposition of Experts Subpoena file in advance. Request all draft reports Emails Correspondence Notes Subpoena all reports expert has drafted in previous X months related to same issue. Where privilege has been waived. This can be the Mother Lode. May discover that Expert takes inconsistent position or uses different methodologies depending on side represented. 30 2014 Attorney s Briefcase, Inc. 10
Deposition of Experts Notice depo in their office. Prevents their saying I left that in my office. Be prepared to tender their (outrageous) fees for appearing at deposition. You do not pay their for their preparation or travel time. 31 32 Deposition of Experts What are your goals? Educate the expert on the weaknesses of his/her opinion? Inform the Expert of the strengths of your case? Generally no! Carefully prepare your questions. Utilize your Expert to assist. st. Goals should be: Learn Expert s opinion. Determine: Scope of engagement Documents reviewed. Investigation done. People interviewed. Site visit. Deposition of Experts What do you wish to learn? Secondary sources consulted/relied upon. Surveys Databases Appellate opinions/rev. Rulings/statutes What are their opinions? Methodology followed. Assumptions. Often key factors. Hidden in Notes. 33 2014 Attorney s Briefcase, Inc. 11
Any additional work required? Deposition of Experts Are the opinions expressed are the only ones Expert expects to present at trial. Last question should always be: Have you formed any opinions in addition to those we have discussed today? Jones v. Moore (2000) 80 CA4th 557, 565: Where Expert testified at depo. that s/he did not have any additional opinions, may be precluded from testifying at trial to opinions not expressed during the depo. 34 35 Deposition of Experts What if your expert forms new opinions after depo? Notify opposing counsel in writing immediately. Offer to permit your expert to be re-deposed at no charge. Goals are: To learn. To pin down. NOT to educate. Deposition of Experts Subpoena all reports Expert has written that are not protected that deal with same business/issue in last X years. Does Expert consistently use same methodology/assumptions? Or, do they vary based on which party hired them? Should you videotape the deposition? Advantages: Makes (most) experts uncomfortable. Body language likely to be very different than in court. Often tones down obstreperous opposing counsel. Disadvantages: Expensive. Invites retaliation. 36 2014 Attorney s Briefcase, Inc. 12
Excluding unqualified expert opinion Sargon Enterprises, Inc. v. USC (2012) 55 Cal.4th 747 (2013) 215 Cal.App.4th 1495 "[T]he trial court has the duty to act as a 'gatekeeper' to exclude speculative expert testimony. Court must consider both Evid. Code 801 and 802. 801: Judicial review of the type of matter. 802: Judicial review of the reasons for the opinion. 37 Evid. Code 801 If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that t is sufficiently i beyond common experience that the opinion of an expert would assist the trier of fact; and 38 Evid. Code 801 39 (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether h or not admissible ibl that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion. 2014 Attorney s Briefcase, Inc. 13
Evid. Code 802 A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion... 40 Evid. Code 802 The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based. 41 Sargon is a hugely important opinion. F/L judges hear all sorts of expert witnesses: Valuation Tangible Intangible MSoL Reasonable needs of children Income available for support Custody Move-aways Parental alienation Sargon gives judges confidence that they can exclude expert testimony that is based on speculation or conjecture. 42 2014 Attorney s Briefcase, Inc. 14
43 When Your Expert is Testifying at Trial Do s: Qualify your Expert. Have a one page summary of Expert s conclusions. Be certain Expert has a defensible conclusion. Have report written so Expert can lead the Court through it. Have exhibits numbered so judge can review in order. 44 When Your Expert is Testifying at Trial Do s Have exhibits pre-marked in an exhibit binder. Work with Expert to be certain that you thoroughly understand assumptions, methodology, conclusions and report. Work with Expert to be able to present report in as concise a fashion as possible. Have Expert explain all assumptions and methodologies to Court. Use the opportunity to educate the judge. When Your Expert is Testifying at Trial Do s Use visual aids/charts if they will help Court understand and follow Expert s reasoning and conclusions. Have Expert prepared to gently educate the judicial officer on the issue. A good expert is also a good teacher. Refer to every document by its Exhibit number and page and line number. Give Judge an extra copy of report so she can make notations on it. Listen to and give deference to questions from the Judge. 45 2014 Attorney s Briefcase, Inc. 15
When Your Expert is Testifying at Trial Don ts: Rely on your Expert to present conclusions and report on his/her own. Expect your Expert to be able to explain conclusions to Court if you don t understand them. Permit Expert to jump all around a lengthy report. 46 When Your Expert is Testifying at Trial Don ts:. Get lost in minutia. Permit Expert to appear as an advocate. Ask Expert questions you have not discussed in advance. Permit Expert to argue with the judge. Put the judge to sleep. 47 When Cross-Examining an Expert at Trial Do s: Voir dire expert: Focus in on lack of experience in this area. Have questions scripted. Have a goal. Work with your own Expert to understand weaknesses of opposing expert s methodology, conclusions, or report. 48 2014 Attorney s Briefcase, Inc. 16
When Cross-Examining an Expert at Trial Goal Impeachment: Call into question their veracity. Show that expert is unworthy of belief. Evid. Code 780: Any matter that affects truthfulness of testimony. Existence or nonexistence of a fact testified to. 49 When Cross-Examining an Expert at Trial Do s: Understand the assumptions s/he used and show that they are biased or unsupported. Have impeachment material available. Expose weaknesses in Expert s methodology or assumptions. Show where they have taken contrary positions when representing parties in opposite situation. Ask questions that can be answered with yes/no or a figure. 50 When Cross-Examining an Expert at Trial Don ts: Be disrespectful. Argue with Expert. Repeat expert s conclusion multiple times. Ask an open-ended question that permits Expert to explain or expound his answer. Expect expert to change conclusion. 51 2014 Attorney s Briefcase, Inc. 17
Their expert will never agree with you. You aren t going to get them to admit the error of their ways. Goal is to impeach, not to reform. You do this by showing the weaknesses in their methodology, the weaknesses in their assumptions and their lack of impartiality. The judge will do the rest. 5 2 Get your expert paid! There are only a finite number of really good experts on any given topic. You want them to want to work with you. If they are repeatedly stiffed by your clients, they will be unavailable when you call. Don t guarantee their fees, but Work with your client to get them paid. 53 Keep files on all experts especially yours Whenever you work with or against an expert, keep copies of Their reports. Deposition transcripts. t Trial transcripts. If not otherwise necessary, pay for them yourself. After a few years, issues will recur. Incredibly valuable in future cases. 54 2014 Attorney s Briefcase, Inc. 18
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