Experts: A Few FundamentalsAuthor(s): Peter I. OstroffSource: Litigation, Vol. 8, No. 2, EXPERTS (Winter 1982), pp. 8-9, 64Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758681 .

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Experts: A Eew Fundamentals

byPeterl.Ostroff In more and more business cases, juries and judges are be?

ing asked to believe "experts." For those lawyers who are not experts in this area, here is some basic advice on how to

pick the right expert, how to set him to work for you, and how to prepare his trial testimony.

Under Federal Rule of Evidence 702 and the many similar state statutes and rules, lawyers have broad discre? tion in choosing their experts. To testify as an expert, a wit? ness needs to be qualified only "by knowledge, skill, ex?

perience, training, or education." FED. R. EviD. 702. An

early draft of Rule 702 would have required "special" knowledge, but the word "special" was deleted as too restrictive. An expert need not even have complete knowl?

edge of his field of expertise or be certain of his opinion. United States v. Spencer, 439 F.2d 1047, 1049 (2d Cir.

1971); Baerman v. Reisinger, 363 F.2d309,310 (D.C. Cir. 1966).

The broad leeway you have in selecting an expert under these rules makes your decision all the more difficult and

important. From the large number of persons who might qualify as an expert witness, whom should you choose?

First, choose a person who practices full time in the rele? vant field of expertise. In recent years, the increasing amount of litigation and use of experts has given rise to a number of firms and individuals who specialize in pro? viding expert testimony. Shun both these professional witnesses and litigation specialists.

A full-time practitioner will have more "knowledge, skill, [and] experience" about his field than someone who

spends much of his time in court. The practitioner may also have more "training and education." And the more

your expert knows, the better he can equip you to present your case.

"Professional witnesses" are often less credible; they appear to be hired guns, ready to render any helpful opin? ion so long as the pay is right. The natural skepticism with which many judges view expert testimony is most apparent

Mr. Ostroff is a member of Sidley & Austin in Los Angeles.

with respect to such "professional witnesses." A full-time

practitioner is not as subject to this criticism. Moreover, an expert is more convincing when he can testify about his own observations, experiments, and analysis rather than about conclusions he drew from others' work. The full time practitioner who does every day what he is testifying about is more likely to be believed than one who testifies

every day about what he seldom does.

Professional witnesses do have one advantage: often, they are more adept at communicating their knowledge to the jury. That skill is particularly important when the ex?

pert testimony will deal with abstruse, technical matters

beyond the average juror's ken. Despite this advantage of

professional witnesses, you should generally avoid them. You can usually teach communication skills to a full-time

practitioner and, through videotaped practice sessions, mold his testimony into an understandable, persuasive presentation. But you cannot teach a professional witness his field of supposed expertise.

Second, involve your client in the search for an ap? propriate expert. Often your client will be involved in the same field or industry and, therefore, will be better able than you to judge the qualifications and technical abilities of potential experts. An expert consultant or witness is as much the client's representative as you are, and the expert may have an even greater role in the litigation's outcome. The client has a strong interest and a legitimate right to

participate in choosing his expert. Third, like a prudent driver, keep a spare. Select more

experts than you will actually need, and designate all of them if you are required to designate expert witnesses before trial. While it is inappropriate and probably an abuse of discovery to name many more experts than you will actually use, it is appropriate and prudent to identify at least one "spare" for each type of expert you will need.

Why keep a spare? For the same reason the driver does:

you cannot anticipate all the turns the road to trial will

take; it is littered with potholes. To overcome those dif?

ficulties, you need the assurance of a spare. You do not want to start searching for a new expert if your expert goes

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flat or leaves you in a lurch far down the road to trial. And do not kid yourself, even the best experts sometimes fail. Their views may become incompatible with your trial

strategy either because they reach the "wrong" conclu? sions or their opinions do not coincide with other witnesses' testimony. Their credibility or confidence may become irrevocably punctured during discovery. Or, they may go on vacation or sabbatical just as trial is finally reached. The road to trial is rough; you need a spare.

Engagement Letter Once you have chosen and retained an expert, you must

tell him what to do. It is crucial to define the expert's task well because that definition will control the expert's utility throughout the case. At the beginning of the expert's in? volvement in the case, define his job in an engagement memorandum or letter. That will diminish the possibility of confusion or misunderstanding and promote clarity in the definition itself.

The engagement letter will be discoverable if you later

designate the expert as a probable witness. Therefore, draft it as though your opponent will read it. Work with

your expert in drafting it. He can help you avoid am?

biguities, focus on the right questions, and emphasize the

proper points, thus lessening the chance you later will have to revise the letter or send a second one.

Frame the letter so that it does not suggest the answer

you hope the expert will find from whatever studies, ex?

periments, or analyses you ask him to perform. If you sug? gest the desired result, your opponent will use your letter to

prove that your expert did not conduct true studies, ex?

periments, or analyses, but, rather, that his efforts were shams designed to support your predetermined conclu? sion. Your letter should ask the expert for his opinion "respecting whether or not [certain facts and cir? cumstances warrant a particular conclusion]" rather than

asking him "to testify that [a particular conclusion follows from certain facts and circumstances]."

The same caution observed in drafting the engagement letter should govern all your communications with an ex?

pert unless you have firmly decided that you will never use him as a witness. If you ever decide to use the expert as a

witness, all your written or oral communications with him

may become discoverable, including the instructions you gave him, the background facts you described for him, and the documents you sent him to study. At a minimum, everything the expert witness reviewed and considered in

reaching his conclusion or preparing his testimony will be discoverable.

Phrase all your communications with the expert in a manner consistent with the evidence and your theory of the case. Do not disclose facts or documents to the expert unless the opposition has already learned or seen them or

you do not mind if the opposition does learn or see them.

Materials an expert witness generates are equally discoverable. Tell your expert this at the outset. While he

may need to generate some documents as he pursues his

studies, experiments, or analyses, caution him not to com? mit speculations or ill-considered conclusions to writing. Ill-considered writings can undercut subsequent, more

carefully derived conclusions, rendering the expert useless as a witness. An expert should never write a report until he has first discussed his conclusions with you orally.

If you do decide to retain an expert solely as a consul? tant, be sure to insulate him from your expert witnesses so that your communications with the consultant and his work product will not be discoverable. Do not allow the ex?

pert witnesses to discuss the case or obtain information from your consultant; have all such communications fun neled through you.

The first rule in preparing for a trial involving expert witnesses is to know the experts, both yours and the op? position's. Obtain and read every professional publication by each expert. Get as much information as you can about each expert's prior depositions and trial testimony. If the

expert has extensive academic credentials, try to get transcripts of his grades as a student and obtain evalua? tions of him from his professors and peers.

Why all this work? The expert will almost always know more about his field than will trial counsel. Collateral or ad hominem attacks may be the only available avenue of cross-examination. If the expert has said something before on the same subject, you need to know it to point out

any inconsistencies or to assure that his testimony is con? sistent. From time to time you may find the cross examiner's dream?the expert who has written incon?

sistently about the subject of his testimony. If there is a blot somewhere on the expert's record, you need to know it to protect or attack the witness.

You cannot neglect the substance and underpinnings of the expert's testimony. You should depose the opposing

Experts should be teachers who simply and

convincingly explain complex matters.

experts, and then work with your own experts to devise the most effective cross-examination of the opposition.

You should carefully prepare your own experts, making them teachers who can simply and convincingly explain complex technical matters to the jury. Your experts should exude competence and credibility. This will come partly from careful preparation and thorough rehearsal of their

testimony. It also will be telegraphed by their clothing and

appearance. A clean, neat appearance is always desirable, but avoid dressing your experts in clothes inappropriate to their callings. Machine shop mechanics may be experts, but they should not appear in court in three-piece, pin? striped suits. Similarly, college professors should look the

part, not like trial lawyers. Give your experts the usual cautions about speaking

simply, and never with condescension, arrogance, or pom (Please turn to page 64)

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understanding will Direct ye as to them/'

The law is not what it used to be. Unless the jury is instructed so that it is able to render its verdict in accor? dance with the law, trial by jury is little better than mob rule. Yet this fact seems to have had little influence on instruction ritual. The legal pro? cess, while going to great lengths to insure that juries will be representa? tive and free from bias and extraneous

influence, has not protected them

against confusion and misunder?

standing. This state of affairs depreciates the

justice system. It makes juries suscep? tible to appeals, passion, and preju? dice and lessens confidence in the re? sults of jury trials. It is clearly not in the interest of the trial lawyer and the

lawyer's client. Advocacy is an appeal to reason, to common sense, and to

those instincts that animate man's sense of justice. A jury confused by its task and resentful of its lack of under?

standing cannot be counted on to re?

spond to advocacy of a high order.

Experts: Fundamentals

(Continued from page 9)

posity. You should tell them that a

good expert admits when he is uncer?

tain, acknowledges he has erred in the

past and doubtless will in the future, and concedes indisputable facts even when they are adverse. Point out that a good expert cannot be goaded into

taking positions he has not consid? ered carefully before assuming the witness stand.

Next, review the expert's testimony with him, finding out what he has to

say, how it can best be phrased, and what questions you should ask to elicit that testimony. You should consider whether the expert's testimony can be enlivened or made more comprehen? sible with demonstrative evidence such as charts, graphs, or slides. If

you decide to use such aids, the expert should prepare them or at least assist in their preparation.

The structure of the expert's testi

mony is very important. At the outset, of course, you must qualify the ex?

pert. In most jurisdictions this in? volves demonstrating that the subject matter of the testimony is an area in which the trier of fact will benefit by some assistance and that the expert has the training, skill, or experience to provide that assistance.

Unless the substance of the testi?

mony will not be disputed or the ex?

pert's credentials are unimpressive, the expert's qualifications should be set before the jury or judge in loving (but also lively) detail. In view of the

impact that such matters have on those who weigh credibility, do not surrender your opportunity to parade your expert's pedigree nor accept a

stipulation as to qualifications unless the expert's credibility definitely will not be challenged.

Qualifications aside, the expert's testimony should be organized like an assault on Mt. Everest: first, climb the mountain; second, plant a flag at the top; and third, climb down. In

climbing up, the expert should detail all the preparation, study, experi? mentation, rejection of alternative conclusions, and analysis that he has undertaken to formulate his conclu? sions or opinions. The flag at the pin? nacle is the expert's statement of his

opinion. In climbing down, the expert may explain the basis or reasons that

support his conclusion. Taken in this

order, the expert's testimony will be understandable and will lend credi?

bility to his conclusion. Once you have formulated the

basic outlines of your expert's testi?

mony, rehearse it with him. Rehears? al is particularly important if you use visual aids with the testimony. If the

expert has mannerisms or speech pat? terns that may detract from his credi?

bility, a videotape practice session is often helpful. You then can review the

videotape with the witness to improve the presentation, and repeat the drill to refine the expert's testimony to a

simple, persuasive performance. Sim?

ilarly, you should try to anticipate cross-examination and prepare re?

sponses to predictable areas of in?

quiry. Having followed all these funda?

mental guidelines, you and your ex?

pert should be well prepared for the

rigors of trial. Your expert will be, as

he should be, a convincing salesman for your position. And you will be

equipped to deal with the opponent's experts as well. After a few trials with

expert witnesses, you will be the ex?

pert.

Discovery of Experts

(Continued from page 16) cementing an expert's opinion into a mold that may be inconsistent with the facts. All human beings, includ?

ing experts, are also liable to use in? artful phrases or words upon occa? sion. Infelicitous phrases in an ex?

pert's written report are unnecessary holes below his water line.

The safest course is to ask an ex?

pert not to put anything into writing unless absolutely necessary. If you need an affidavit from an expert, ask him to tell you his opinion and the bases for it. Draft the affidavit your? self. Read it to the expert. Get his

approval. Give him only the final draft to sign. All other drafts might be protected by the work product doctrine. As the Supreme Court re?

cently stated, "[f]orcing an attorney to disclose notes and memoranda of witnesses' oral statements is par? ticularly disfavored because it tends to reveal the attorney's mental pro? cesses." Upjohn Co. v. United States, 449 U.S. 383, 399 (1981). The same is true with getting an ex?

pert's report. Get it orally. In principle, if an expert's written

statement to you is discoverable, his oral statement should be as well. But as a practical matter, the expert will not remember for any length of time the exact terms of his oral state?

ments.

Despite the addition of Rule

26(b)(4) in 1970, problems with discovery of experts still plague the federal courts. Nevertheless, by withholding from your experts all otherwise privileged material and by avoiding unnecessary written com? munications from and to an expert, you can sidestep many of the serious

pitfalls.

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