Your First Expert Witness-part Ii
| Publication year | 2011 |
| Pages | 93 |
| Citation | Vol. 40 No. 6 Pg. 93 |
2011, June, Pg. 93. Your First Expert Witness-Part II
June 2011
Vol. 40, No. 6 [Page 93]
Young Lawyers Division
The CBA Young Lawyers Division Department comprises practical articles of interest especially to novice attorneys. Suggestions for article topics or final draft manuscripts may be sent to Coordinating Editor Christopher D. Bryan-(970) 947-1936, cbryan@garfieldhecht.com.
About the Author
Ronald M. Sandgrund is a principal with the Denver law firm of Sullan, Sandgrund and Perczak, P.C.-rsandgrund@vsss.com. Associate attorney Jenn Seidman Tal helped significantly with editing the article. The firm represents commercial and residential property owners and homeowner associations and unit owners in construction defect and insurance coverage disputes. Sandgrund estimates that he has retained expert witnesses more than 300 times in property damage, personal injury, product liability, insurance bad faith, professional liability, business venture, construction defect, wrongful death, consumer class action, and other lawsuits.
Effective expert testimony boils down to one thing: a credible, prepared expert witness. This two-part article describes the essential principles a new lawyer should consider when retaining, preparing, deposing, and examining expert witnesses. Part I(fn1) discussed why expert testimony is useful, when expert testimony is advisable, who might qualify as an effective expert witness, how to locate and retain qualified experts, what needs to be done to prepare an expert for rendering opinions, and what qualities to look for in an expert witness. This second part examines defining the scope of the expert's assignment, providing the expert with case information, developing and disclosing the expert's opinions, and preparing your own and the opposition's expert witnesses for deposition and trial examination.
Nuts and Bolts
Following are some suggestions regarding the development of your expert's assignment and how and when to provide your expert with relevant facts and assumptions. Checklists are provided to assist attorneys and their experts in creating C.R.C.P. 26-compliant expert reports, as well as recommendations on how to mine the record before cross-examining an opposing expert.
Defining the Assignment
On the one hand, it may be important to narrowly define the assignment so that the expert does not run up a huge bill pursuing remote issues. On the other hand, it may be advisable to define the assignment broadly, so that if the scope of the expert's work later expands, this is not obvious to the opposing side when it reviews the expert's file. Opposing counsel might try to use such a change in course to argue that you and your expert had to alter theories because your case is weak and without merit. A proper balance between these considerations must be struck.
One way to begin defining the assignment is to review in lay terms with every expert the theory of your case and the admissibility requirements for expert opinions. Describing the theory of your case helps the expert identify relevant technical issues and encourages a collaborative process. An expert who understands admissibility requirements can articulate his or her opinions and the basis for them in ways that satisfy applicable legal rules.
Under both the Federal and Colorado Rules of Evidence, expert opinion testimony must be relevant and reliable.(fn2) In short, the scientific or technical expert's testimony must be grounded in "the methods and procedures of science rather than subjective belief or unsupported speculation."(fn3) In People v. Ramirez, the Colorado Supreme Court stated that
the method employedby the expert in reaching the conclusion [must be] scientifically sound and ... the opinion [must be] based on facts which sufficiently satisfy Colorado Rule of Evidence 702's reliability requirements.(fn4)
Expert testimony that is based on experience and judgment and is not dependent on scientific explanation-such as regarding a party's standard of care or the substantial similarity between original and copyright-infringing work-is not subject to these criteria. Instead, the trial court "must consider whether the testimony will be helpful to the jury and whether the witness is qualified to render an expert opinion on the subject in question." If the testimony is admissible under C.R.E. 702, the court must "determine whether the probative value of that evidence is substantially outweighedby the danger of unfair prejudice."(fn5)
Throughout the course of a case, you will want to keep the expert apprised of the case's progress and important developments, including any setbacks, strategic changes, or the entry of any orders that might affect the expert's assignment.(fn6) After every deposition, you should evaluate whether anything relevant to a particular expert's opinions was discussed. If so, a copy of the deposition should be provided to the expert, and the effect of the testimony on the opposing expert's opinions should be reviewed with your expert. Staff should keep experts apprised of changing disclosure, deposition, and trial deadlines.
Providing the Data and Creation of the Expert's File
It is important to document all data supplied to an expert and the date it was provided. Each data transmittal should be accompaniedby a confirming e-mail or letter. There are two main reasons for keeping track of data transmissions. First, C.R.C.P. 26(a)(2)(B)(I) requires disclosure of all data or other information the expert "considered" in formulating his or her opinions. Failure to comply with this disclosure requirement could, in extreme circumstances, result in an order striking or limiting the expert's testimony.(fn7) Second, it is poor form for an expert to formulate any opinions before having reviewed all of the reasonably available data. Experts often develop preliminary opinions as the data streams in; however, if the expert's final opinions are generated before he or she receives all pertinent record evidence, a jury may infer that the expert is simply a hired gun with prepackaged opinions that ignore the evidence.
Experts should familiarize themselves with more than the "theory" of your case. For example, construction experts should see and touch the defectively built home. Product liability experts not only should physically examine the product, they also should visit the accident scene. It often is helpful and efficient for you to join the expert during a site visit.
All relevant, non-privileged information should be provided to the expert to guard against a charge that you filtered the evidence to influence the expert's conclusions. The expert's file contains the most important source material the opposition has to attack the expert's credibility. This ammunition is summarized in Appendix I.
Generating the Expert Report or Summary
Most expert witness reports contain (1) a brief summary of the assignment described in neutral terms; (2) a recapitulation of the expert's main opinions; and (3) a detailed restatement of the opinions, accompaniedby a description of the expert's investigation and work, supporting facts, and appendices. Some information that may seem standard or routine to the expert should be explained in the report. The greater the care taken to explain standard methodologies and industry practices, the less room there will be for challenges to the sufficiency of the disclosure later.
The best time to address problems with an expert's report is during the expert's investigation and report preparation, not after the report has been disclosed. The report should render opinions on all the issueson which you need your expert to opine. You should verify that the report discloses all material underlying facts and assumptions. If the report is deficient, you will want to work with the expert to incorporate any previously undisclosed matters into his or her deposition testimony; however, it is important to keep in mind that anything an attorney discusses with an expert may be discovered and that consequences may flow from untimely disclosed matters.
Appendix II delineates current expert witness disclosure requirements. In accordance with C.R.C.P. 26(a)(2)(B), the information listed must be disclosed. (Some differences exist between the disclosures required under Colorado and Federal Rules of Civil Procedure.) Appendix II also describes some traps the unwary practitioner should try to avoid.
You must ensure that the expert's testimonial summary or report is accurate, complete, and up-to-date. A material failure to meet disclosure obligations may result in serious sanctions, including precluding the expert's testimony in whole or significant part.(fn8) Because compliance is relatively easy, and the perceived advantage to be gained from "hiding the ball" often is illusory (if not sanctionable), you should strive to meet, if not exceed, the rule's disclosure requirements.
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