Ten Deadliest Mistakes of Expert Witnesses
Ten Deadliest Mistakes of Expert Witnesses
Are you an expert? Technical knowledge isnâ€™t enough, as Michael G. Kaplan explains. An effective expert witness must understand the dynamics of trial, possess excellent communication skills, and have a full command of the litigation process. Here are 10 mistakes that 35 years of experience have taught Kaplan to avoid.Â
Federal Rule of Evidence 702 teaches us that an expert is one, who by virtue of his or her skill, knowledge, experience, education, and training, can provide testimony that can assist a judge or jury to reach the correct verdict.
Experienced experts know that, in addition to the characteristics described in FRE 702, an expert must have a command of the litigation process, understand the dynamics of trial, and possess excellent communication skills in order to be truly effective.
To evolve from neophyte to effective seasoned expert, one must shed common misconceptions about the expertâ€™s role and learn to avoid common mistakes. Those who do not evolve find themselves not only with a collection of unhappy attorneys and clients, but often find themselves with significantly limited careers.
The following presents some of the mistakes that can prove deadly to even the most technically competent experts:
This can prove frustrating for experts who pride themselves on delivering state of the art professional reports.
An effective expert knows that he or she typically must convey the substance of the report through oral testimony. In addition, the expertâ€™s report is often inadmissible as evidence. This will render the report unavailable for review by the jurors, who would probably be uninterested in reading the report even if it were available.
There is one thing that an expert can expect for sure. Opposing counsel and the opposing expert will dissect and analyze the report carefully and use it as a roadmap for cross examination.
Examples are compilation reports, prominent disclosure of reliance upon other experts for significant pieces of foundational evidence, and disclosure of reliance upon representations of the litigants or other third parties without verification.
A good cross-examining attorney can transform standard disclaimer language into the expertâ€™s lack of thoroughness and unwillingness to accept responsibility for his or her work. In addition, financial experts, who are so careful and meticulous about their numbers, are often less attentive to the textual portions of their reports.
Occasionally, important evidence is withheld from the expertâ€”intentionally or inadvertently. Occasionally, experts are asked to adopt assumptions that may, taken out of context, appear reasonable, but given the circumstances of the case, may be totally inappropriate. And in those situations in which the expert has direct contact with the litigant, the expert must expect that most of what the litigant says is colored with the litigantâ€™s own bias.
An expert who spends too much time with a client runs the risk of confusing the litigantâ€™s bias with the actual evidence. Accordingly, an expert who fails to verify the attorneyâ€™s and the litigantâ€™s representations, runs the risk of formulating shaky opinions and having them crumble when more reasonable assumptions are introduced.
As part of this process, counsel may ask to remove documents that could be problematic to the case. These documents often are in the form of notes, correspondence, and draft reports. When the items that are removed are among those considered by the expert in the formulation of his or her opinions, their removal may prevent opposing counsel from gaining access to documents that are, by law, discoverable.
Should opposing counsel learnâ€”during the expertâ€™s deposition, independent discovery, or via some other meansâ€”that relevant documents have been removed from the file, the expert runs the risk of embarrassment, impeachment, or possible exclusion.
Marketing materials can also be a minefield. Brochures, websites, directory listings, social networking internet sites, and advertisements in professional journals are typically intended to serve one purposeâ€”to generate additional business.
Occasionally, the marketing materials suggest that retention of the firmâ€™s experts will result in a positive outcome of the lawsuit. Again, this provides great food for productive cross-examination as opposing counsel uses the marketing materials to suggest that the professional is not an unbiased expert, but, instead, is an advocate.
Accordingly, it is important for an expert to review the marketing materials of his or her firm to ensure that they are free of incorrect information, over aggressive representations, and other suggestions of advocacy.
Sometimes opposing counselâ€™s successful motion in limine to exclude the expert is the result of retaining counselâ€™s missteps. However, careful planning on the part of the expert could have avoided the expertâ€™s exclusion. This planning typically includes reviewing counselâ€™s expert witness disclosure setting forth a description of what counsel represents the expertâ€™s testimony will be. It also includes disclosures in the experts report evidencing that the expertâ€™s methodology meets the Daubert and other relevant tests.
The expert must also a clear understanding with counsel that the expertâ€™s input will be solicited should a motion in limine be filed. Successful experts understand that motions to exclude expert testimony are customary tactics used by opposing counsel and that there is a need to plan in advance for the possible defense of the challenge.
â€śOff-the-recordâ€ť comments to the opposing expert, opposing counsel, or any member of the adversarial team are likely to find their way â€śonto the recordâ€ť should they be helpful to opposing counselâ€™s case. An expert who told the other expert that â€śhis client had an intelligence level one notch above that of a cactusâ€ť found his exact words quoted in a declaration executed by the opposing expert. An expert must avoid situations in which statements can be attributed to the expert, even though he or she never made them.
In a recent matter, an expert shared a taxi with two experts on the other side of the case. These experts were professionals who he knew as they practiced in the same field, attended the same professional conferences, participated in the same list serves, and had several mutual professional friends.
At trial, one of the opposing experts testified that this expert had admitted to certain weaknesses in the evidence supporting his clientâ€™s case and his opinions. The second expert for the other side corroborated this testimony.
Although the expert never made this statement, he had put himself in a situation that allowed his adversaries to fabricate self-serving evidence. The bottom line is that an expert is always on stage.
The expert whose report states, â€śThis is the worst case that I have ever seen,â€ť will have his or her credibility greatly impaired when opposing counsel introduces several prior reports, each of which is the worst case that the expert has ever seen.
Likewise, the malpractice expert who works for plaintiffs 95 percent of the time is subject to interesting cross-examination, particularly if the expert, over a span of twenty years, has never opined that a defendant actually met the standard of care.
Another risk of using â€ścookie cutterâ€ť opinions is the possible imperfection of the â€śsearch and replace functionâ€ť of word processing programs. Occasionally an expert report will include names, data, and other information related to a previous case. This suggests that not only is the expert careless, but also that the expertâ€™s opinions are merely a replication of opinions formulated in a prior and unrelated case.
Often, well-founded opinions rendered by a well-educated and highly competent expert are rejected by a judge or jury because the expert did not communicate his or her opinions in a manner that was understandable by the judge or jury.
During post-verdict interviews, many jurors report that they did not understand a word of the testimony of one of the experts. Accordingly, when delivering expert testimony, the expert must avoid tech-talk and deliver opinions in clear language understandable by non-experts. An effective expert will paint a picture in the mindâ€™s eye of the jurors and enable them to understand the expertâ€™s testimony.
An effective expert will also pay careful attention to body language, eye contact as well as continually read the â€śpulseâ€ť of the jury. This non-exhaustive list highlights ten common areas in which experts often misstep. An expert must realize that it is the expertâ€™s responsibility to anticipate the stumbling blocks and be prepared to respond to the challenges.
Michael G. Kaplan, CPA, CVA, CFFA has more than 35 years of experience in the areas of forensic accounting, business valuation and litigation consulting. He is the principal of Kaplan Abraham Burkert Associates, Forensic Valuation Consultants and senior advisor at Freeman & Mills, Inc., Consultants to Management & Counsel. Reach him as firstname.lastname@example.org