Providing Effective Litigation Services (Part 1 of 4)

Procedural phases in litigation: the role of the expert from drafting of the complaint through trial

In this first part of a four-part series titled “Providing Effective Litigation Services” Mark Shirley, CPA/ABV, CVA, MAFF, CFE presents an overview of the phases in a civil case, from filing of the complaint through trial.  An effective expert is a professional that understands the procedure, rules, his or her role and has the knowledge to provide the trier of fact, an informed opinion and ability to anticipate challenges.   

The U.S. Judicial System, civil and criminal, is based upon the adjudication of law and admissible evidence. The judicial process is not about justice; it’s about evidence.  As Justice Oliver Wendell Homes, Jr.¹  eloquently stated, “This is a court of law, young man, not a court of justice.” This distinction is a common misinterpretation for plaintiffs, defendants and many experts.

It is characterized as being adversarial, emotional, expensive and unpredictable. The Rule of Law includes specific statutory rules governing the admissibility of evidence, including proffered expert opinion testimony. As the U.S. Supreme Court affirmed in Daubert v. Merrell Dow Pharmaceutical, Inc.² the Federal Rules of Evidence (Fed.R.Evid.) provide a liberal threshold for admissible expert opinion testimony.

“…a rigid ‘general acceptance’ requirement would be at odds with the ‘liberal thrust’ of the Federal Rules and their general approach of relaxing the traditional barriers to ‘opinion’ testimony.” (Emphasis added)

Consequently, the evidentiary rules “extend equal dignity to the opinions of charlatans and Nobel Prize winners, with only a lay jury to distinguish between the two.”³ The Trial Court has been granted significant discretion regarding the admissibility of expert opinion testimony and the high court expressed great faith in their ability to differentiate between science and junk science, although the theories, methods and approaches would be beyond the common knowledge of the jurists. This is the environment in which a tendered expert is thrust; all opinion testimony will be admitted, subject to the discretion of a trier of fact who generally lacks the “education, training, skill or experience” in the discipline or field of the expert. The trier of fact, whether judge or jury, will gravitate towards and apply the simplest theory to the body of evidence; applying distortions of Occams Razor⁴ and Principle of Parsimony.⁵

The following article will discuss the judicial definition of “expert”, the judicial process, the role of the expert and effective engagement preparation, presentation, skills and techniques.

THE QUALIFICATION OF AN EXPERT

An expert is one who is qualified by knowledge, skill, experience, training or education. An expert witness is an expert who is engaged to express an opinion in the form of a report or testimony at trial or deposition. A consulting expert is an expert who is engaged to advise an attorney or expert witness regarding technical or legal issues, but not provide expert testimony.

Proffered expert opinion testimony is evidence and subject to either federal or state rules of evidence regarding admissibility. The litmus tests for admissibility are relevance and reliability however, there are few descriptive statutory or juridical standards providing a qualitative or quantitative measure for these subjective terms. The trier of fact is provided significant discretion in applying these tests, resulting in little standardization between state judicial district courts, state appellant courts and federal district courts and federal appellant courts.

THE JUDICIAL PROCESS

Judicial process is comprised of structured procedures to move the litigation through final adjudication. It is imperative to understand the general procedures (code of civil procedure and rules of court) which govern the particular court in which the expert will proffer opinion testimony. The general procedures are consistent among the various state and federal courts.

Litigation begins when a client approaches an attorney with a legal problem. The attorney investigates the client’s allegations and a complaint is filed by Plaintiff. The complaint is the first pleading in a civil case and sets forth the Plaintiff’s allegations, cause of action and legal remedy sought.

Defendant responds (answers) Plaintiff’s complaint and admits or denies the specific allegations. The Defendant can assert counter allegations in the form of an Answer and Reconventional Demand. If the Defendant believes plaintiff has not met the legal standard of making a proper complaint, a motion (demurrer) may be filed with the court alleging that a cause of action or legal remedy does not exist, even if the facts are true and the litigation should be dismissed.

Discovery

Formal and informal discovery takes place between the filing date of the complaint and the date of trial or the judicially determined discovery cut-off date; i.e. the discovery phase. Written discovery requests are broadly referred to as Requests for Production (RFP). The rules governing requests for the production of documents vary from jurisdiction to jurisdiction. In the U.S. Federal court system, such requests are governed by Fed.R.Civ.Proc. Rule 34.

An RFP is a legal request for documents which requires one party to provide documents it holds relevant to issues in the case, including electronically stored information, or other tangible items and potentially copies of e-mail messages transmitted by employees of the opposing party.

The responding party (respondent) is required to produce copies of any documents that are responsive to the request, except for those that are legally privileged. Responding party also can submit a response to the requestor explaining why the documents cannot be produced, for example: when the documents have been destroyed, would be unduly burdensome to produce or not in possession of the party. The requestor then may file a Motion to Compel Discovery to still obtain the documents.

Formal discovery covers several types of inquiries which include interrogatories, subpoenas, depositions and stipulations.

Interrogatories are written questions propounded on the opposing party, fact or expert witness, which must be answered in writing and under oath.

Subpoenas, defined at Fed.R.Civ.Proc. Rule 45, are legal requests for the production of documents or to compel a fact or expert witness to provide sworn testimony at deposition or trial. There are two general types of subpoenas:

Subpoena ad testicandum refers to a subpoena compelling an individual to provide sworn testimony either in a deposition or at trial.

Subpoena duces tecum commands a witness, fact or expert, who is in possession or control of some document or paper that is pertinent to the issues of a pending controversy, to produce it at trial or at a deposition.

The use of overly broad descriptions may be objectionable and result in a Motion to Quash the subpoena. Objections to production can be made based on the relevancy of the documents or attorney work-product privilege. Only documents which exist and that the respondent has access to or control of are required to be produced.

Non-compliance with a valid subpoena may require the court to enforce the subpoena through; 1.) affirming the requestor’s motion to show cause/compel, 2.) issuance of a bench warrant or 3.) affirming requestor’s motion for sanctions.

Depositions are oral testimony, under oath, of witnesses, litigants and expert witness. Videotaped depositions are used to evaluate the expert’s visual demeanor and potential influence on the trier of fact.

Requests for admission (stipulation) seek the opposing party’s acquiescence or verification of information or facts and may narrow facts to be adjudicated at trial,

Pre-Trial Orders and Procedures

On Rule Day, the litigants can bring issues before the court for consideration in the form of motions. Briefs may be required arguing issues of law, for the admission or exclusion of evidence. Scheduling orders, establishing discovery cut-off, exchange of expert reports, pre-trial orders and trial dates may be affirmed on rule day or in chambers conference with the trier of fact.

Forced mediation is gaining acceptance as a pre-condition to trial. Mediation may be court ordered or required under the prevailing rules of civil procedure. Many family courts have adopted formal and mandatory Hearing Officer procedures as a pretrial settlement tool. Mediation can be requested by the litigants or ordered by the court where a Special Master is appointed for that purpose. During mediation, the rules of evidence and civil procedure are often suspended.

Prior to trial, a Pre-Trial Conference is usually held in the judge’s chambers to determine whether a settlement can be negotiated. If common ground for settlement is not established, the matter is set for trial.  A Pre-Trial Order requires legal counsel for each litigant to provide a list of all witnesses to be called and evidence to be presented. Copies of visual aids and expert reports are exchanged.

The state or federal Rul.Civ.Proc., rules of court and the scheduling order provide the time constraints within which a motion in limini may be filed to limit or exclude witnesses and evidence, including expert opinion reports and testimony. A Daubert Hearing may be scheduled prior to trial to adjudicate the motion. In several jurisdictions, the elimination of a primary witness, evidence or testifying expert are grounds for a directed verdict or summary judgment.

Trial on the Merits

The Trial on the merits follows a prescribed format for presentation of the case in chief for each litigant. Opening Statements, usually limited to jury trials, give each litigant the initial opportunity to briefly state the issues of the case, facts, evidence and legal tenants supporting the conclusion the trier of fact should reach.

The Plaintiffs presents their case in chief first. The Plaintiff has the burden of proof and must meet standard of preponderance of the evidence in civil suits. Plaintiff presents all witnesses and evidence before the defendant presents their case.

The Defendants presents their case in chief including witnesses, exhibits and evidence after plaintiff rests. The Defendant may petition the court for a directed verdict or summary judgment if plaintiff failed to meet burden of proof.

Each of the proffered witnesses will be subject to examination. Voir Dire is the initial examination of an expert witness to establish qualifications, scope and limitations of testimony to be proffered. Opposing counsel has an opportunity to challenge, through cross-examination, a proffered expert’s “education, training, skill or education” and object to the tendering of the proffered expert.

Direct Examination is the first examination of a witness by the attorney for the party calling the witness. The Rules of Evidence, Rules of Court, and Rules of Civil Procedure apply. Cross-examination is the first examination of witness by opposing counsel. Redirect Examination by the party calling the witness, and is limited to issues raised during cross-examination. Plaintiff may be required to attempt to rehabilitee the relevance and reliability of proffered expert testimony which defendant has compromised during cross-examination. Re-cross Examination by opposing litigant is limited to issues raised during redirect examination.

The Plaintiff’s Rebuttal Case is presented after defendant rests and whereby the plaintiff has opportunity to rebut the defendant’s case. Testimony of a rebuttal expert may be proffered. Defendant’s Surrebuttal Case is permitted in some jurisdictions whereby the defendant is permitted to respond to issues raised in rebuttal but limited to issues raised in rebuttal.

Evidence can be presented in camera to preserve evidence for appeal when the Trial of Fact sustains a motion to limit introduction of specific evidence, including proffered expert testimony. The Trier of Fact is not present during the introduction of the evidence, which may include direct and cross-examination of witnesses. The court reporter transcribes the testimony or enters the evidence into the record for inclusion in appellant briefs.

Once both litigants have rested, plaintiff makes first closing arguments, then defendant. A Summary judgment may be requested (moved) when defendant asserts that no triable issues of law exist. There are three types of outcomes which are possible: verdict, judgment and opinion.

A Verdict is a decision rendered by a jury or a judge in a bench trial. A General verdict occurs when the Jury finds for one litigant on all issues generally. A Directed verdict is requested by the defendant at close of plaintiff’s case asserting that the plaintiff has not satisfied burden of proof. A Special verdict occurs when the jury decides only the issues of the case and relegates decisions of law to the judge.

A Judgment is the official decision of the Court as to the rights and claims of the litigants. It is the verdict of the jury if it is accepted by the Court. A judgment inconsistent with a verdict is referred to as “non obstante verdito”.

An Opinion is the stated reason for the Judges’ decisions and interpretation of the relevant law applied to the facts in evidence. The court may take the matter under advisement pending a more thorough analysis of the evidence and law. After deliberation the court my issues written reasons or state the reasons orally on the record.

The unsuccessful party, believing the judgment was in error, can appeal to appellate court based on one or all of the following:

• Abuse of Judicial discretion
• Assignment of errors in law or evidence

The appeal process does not normally permit the introduction of additional evidence or testimony.

The Expert’s Role in the Judicial Process

The expert’s role in the judicial process is specifically defined and subject to the rules of evidence governing admissibility. Effective and efficient litigation preparation begins on the date of the pre-engagement interview with legal counsel and the prospective client. It is imperative that the practitioner thoroughly vet the potential client and legal counsel, review the media reporting regarding the litigation and the filings and pleadings prior to acceptance. The practitioner should always presume that the litigation will be scheduled for trial and allocate sufficient personnel hours.

An expert witness may provide opinion testimony regarding issues to which he/she is an expert, based on; knowledge, skill, experience, training, or education. The proffered opinions or findings must be impartial and objective. An expert is not an advocate for the client or the position advocated by client’s legal counsel. Prepared work-papers and communications are not usually protected under attorney work-product-privilege, state statutory accountant-client confidentiality or other privilege. An expert may be engaged by one litigant by consent of both litigants or by order of the Trier of Fact.

A consulting expert is engaged to advise an attorney regarding the facts, technical issues, legal tenants and/or strategy. The engagement excludes written or oral opinion testimony and client advocacy is implied, however objectivity is required. Prepared work-papers and communications are, generally, protected under attorney work-product-privilege, state statutory accountant-client privilege or other privilege.

An expert may be appointed by the Trier of Fact as a Special Master to evaluate and resolve technical issues outside the knowledge of the court. A Special Master is considered “friend of the court” and is entitled to absolute judicial immunity from claims of negligence and willful acts, excluding fraudulent testimony or perjury.

¹ Oliver Wendell Holmes, Jr. (March 8, 1841 – March 6, 1935) was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932.
² Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 572, 579 (1993)
³ Science Panel in Toxic Tort Litigation: Why We Don’t Use Them.” ICET Symposium III Immunotoxicology: From Lab to Law, 115, 117 (1987)
⁴ William of Occam (1280?-1347?) is said to have said, “Entia non sunt multiplicanda praeter necessitatem” (“Entities should not be multiplied more than necessary”), “Of two competing theories or explanations, all other things being equal, the simpler one is to be preferred.”
⁵ What science does, in fact, is to select the simplest formula that will fit the facts. But this, quite obviously, is merely a methodological precept, not a law of nature. If the simplest formula ceases, after a time, to be applicable, the simplest formula that remains applicable is selected.

Mark Shirley, CPA.ABV, CVA, CFFA, CFE is partner at V & L Consulting of Baton Rouge, LA.  He has concentrated on the disciplines of business valuation, forensic accounting, and financial analysis/modeling. He has provided contributions to a wide range of respected publishers and periodicals including Wiley Law Publications, Aspen Legal Press, The Valuation Examiner, The Practical Accountant, CPA Litigation Services Counselor, The Gatekeeper Quarterly and The Journal of Forensic Accounting among others.

Mr. Shirley has authored courses for NACVA’s Fundamental, Techniques & Theory; Forensic Institute and Consultant’s Training Institute and is a charter member of the LCPA’s Litigation Services Committee. He has been an adjunct faculty member at the National Judicial College, University of Nevada Reno since 1998 and serves on the Advisory Panel for Mdex Online; The Daubert Tracker, an on-line Daubert research data base and on the Ethics Oversight Board for NACVA.