fewa – san francisco chapter dinner meeting, 3/9/11

March 9, 2011 Experts and Lawyers - RJMorris 1

FEWA – San Francisco Chapter Dinner Meeting, 3/9/11

Experts and Lawyers: A Marriage Made in Heaven

(or elsewhere)?by Roberta J. Morris

Lecturer, Stanford Law School


Today’s slides are posted at http://stanford.edu/~rjmorris/fewatalk.pptx

The final version, including survey results,

will be linked on http://stanford.edu/~rjmorris.

Search for “FEWA.”

http://stanford.edu/~rjmorris/fewatalk.pptx

http://stanford.edu/~rjmorris


Outline

• What experts are here tonight?• Digression: Amendments to Rule 26• The Lawyer/Expert Relationship• The Best and The Worst of It

Experts and Lawyers - RJMorris 4

Your Expertise

March 9, 2011

1 2 3 4 5 6 7 8 9 10

0 0 0 0 0000001. DAMAGES (any liability

area)2. Computer/IT3. Criminal4. Employment5. Environmental, Products

Liability, Real Estate, Construction

6. Insurance/Transportation7. Law8. Medical9. Patent10. Other


Experience (units = lawsuits*)

March 9, 2011

1 2 3 4

0 000

1. 02. 1 or 23. 3 to 74. > 7

0 of 35

* Arbitrations , legislative hearings, and the like, too.


Are you usually hired as:

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1 2 3

0 00

0 of 35

1. A Testifying Expert 2. A Consulting Expert3. Other


Your Fee

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1 2 3 4 5

0 0 000

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1. Single hourly rate2. Multiple rates

(different for trial, travel, etc.)

3. Flat fee/negotiated4. Decline to

state/different in different cases

5. Nobody ever asked


Your Hourly Rate

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1 2 3 4 5 6

0 0 0000

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1. Up to 300/hr2. 300-499/hr3. 500-699/hr4. 700-999/hr5. 1000+/hr6. Not applicable


Arrangement(in the majority of your cases)

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1 2 3

0 00

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1. Written Contract2. Oral

Agreement/Informal3. None yet.


Why be a professional expert? 1=only in it for the money and 9=only in it because it is fun. Where are you?

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1 2 3 4 5 6 7 8 9

0 0 0 0 00000

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1. One2. Two3. Three4. Four5. Five (On the Fence)6. Six7. Seven8. Eight9. Nine


Have you as an expert:

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0 0 0 0000

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1. Worked on an expert report (but never testified)

2. Testified at a deposition ONLY (no expert report, no trial)

3. Testified at a trial ONLY (no report, no deposition)

4. Report+Dep (no trial)5. Report+Trial (no dep)6. Dep+Trial (no report)

7. All 3


Rule 26Rule 26 was amended effective 12/1/2010. Which

of the following questions should I answer first?

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1. What is Rule 26?2. What was changed?3. How long will this

take? I know all about it and will run out and make a phone call.


Rule 26 - Background

Rule 26 relates to pretrial DISCOVERY in FEDERAL court cases. States have their own rules.


Terms of Art

Such terms should be used with care.They don’t always mean what people think they mean.Anyone who DOES know what they mean may misunderstand if the term is misused.


Rule 26 - Background

Before 1993, testifying experts’ documents, like lawyers’ documents, were protected from the duty to disclose under the WORK PRODUCT doctrine.

In 1993, drafts of the expert’s report, all the expert’s notes, all communications with counsel, became discoverable.

Effective 12/1/2010, a semblance of sanity was restored.


Have you been affected by (old) Rule 26 with regard to notes, drafting reports, etc?

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1. Yes, horribly so.2. Yes, somewhat.3. Yes, but no big deal.4. No (no problems –

consulting expert or state court cases only).

5. No (never had the privilege [NPI]).


New Rule 26(a)(2) and (b)(4)

•Draft expert reports are NOT discoverable. (This should improve scheduling issues.)

•Communications between expert and counsel are NOT discoverable (with 3 exceptions).

•On a showing of substantial need and undue hardship, the other side can still get discovery.


New Rule 26(a)(2) and (b)(4) – useful links

•Text of Rule 26, as amended. http://www.law.cornell.edu/rules/frcp/Rule26.htm

•Explanation of 2010 amendments: Excerpt from the Report of the Judicial Conference available at http://www.faegre.com/webfiles/Excerpt%20from%20the%20Report%20of%20the%20Committee.pdf

http://www.law.cornell.edu/rules/frcp/Rule26.htm

http://www.law.cornell.edu/rules/frcp/Rule26.htm

http://www.faegre.com/webfiles/Excerpt%20from%20the%20Report%20of%20the%20Committee.pdf




Summary of Changes to 26(a)(2)

•26(a)(2)(B)(ii) : “facts or data” replaced “data or other information.”

•A new provision for experts who do not write reports is inserted as 26(a)(2)(C). - They must disclose the subject matter of their

testimony and a summary of the “facts and opinions.”

•Old C and D are now D and E.


Summary of Changes to 26(b)(4) - 1

•26(b)(4) has two new provisions, (B) and (C), that explicitly confer protection from discovery on: - drafts “regardless of the form in which the

draft is recorded” and- communications with counsel, also

regardless of form -- with 3 exceptions.•Old B and C are now D and E.


Summary of Changes to 26(B)(4) -2• Protection from discovery is by invocation of

Rule 26(b)(3)(A) and (B).– They were not amended.

• 26(b)(3) is the WORK PRODUCT provision.• It recites that “Ordinarily, a party may not

discover … things prepared … for trial by or for another party or its representative…”– The parenthetical after “representative” that

begins “including …” does not say “expert” but does (and did before 12/1/2010, too) say “consultant.”


Summary of Changes to 26(B)(4) -3

• Communications between counsel and experts who write reports

that are NOT protected from discoveryare those that involve:

i. compensation, ii. facts or data provided by counsel and

considered in forming the opinion, and iii. assumptions provided by counsel and

relied on in forming the opinion.


Experts and Lawyers -A Marriage Made in Heaven?

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1. Yes, sure.2. Maybe. What do

YOU think?3. Nah. Purgatory is

closer.


Experts and Lawyers - Marital Problems

• General– Communications (Talks/Listens - too little/too much)– Money (and communication about money)

• Courtship Problems: Being Chosen and Choosing

• After the Honeymoon – Time (Scheduling, Estimating)

• (Rule 26 changes will help)– Flexibility/Adaptability


Experts and Lawyers:Courtship – Theatrical Analogy

An actor auditions for a part and quickly realizes that the script is stupid and the director is incompetent. The actor does not , however, withdraw from consideration

because,“Any gig is better than no gig.” Is it the same for experts?


For an expert, is it true that“Any gig is better than no gig”?

March 9, 2011

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0 0 0 0000

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1. Always2. Usually3. Sometimes4. ON THE FENCE5. Sometimes NOT6. Rarely7. Never


Any Gig…• Maybe you’ll learn to love each other• You keep an open mind• You can work with all kinds

OR• It’s NOT as easy to love a poor person as a rich

person (poor/rich in a monetary or non-monetary sense)

• You trust your instincts / first impressions• Once bitten / Been there, won’t do that again


Courtship – The Lawyer’s Side• Limited Pool of Genuine Talent• Conflicts

– Financial: Sponsored research (esp. medicine)

– Human: it’s a small world and everyone knows everyone

• Outsider or Insider?• Expert witness version of “Dance 10, Looks 2”


Experts and Lawyers -Litigation-Specific Problems

• The Moving Target Problem

• Independence (credibility) v. hired gun (perceived/actual bias)


Experts, and the Lawyers Who Love Them

• What Lawyers Like about Experts1. Smart! Interesting! Witty! 2. Infectious Love of their Job (Great Teachers!)3. Intellectually Curious (Great Students!)


Experts, and the Lawyers Who Hate Them

• What Lawyers Don’t Like about Experts1. Yes-persons2. “Toxic Egos”3. Bad at Cross (see 1 and 2)4. See Marital Problems


Experts, and the Lawyers They Love

• What Experts Like about Lawyers– Smart! Interesting! Witty! – Infectious Love of their Job (Great

Teachers!)– Intellectually Curious (Great Students!)


Experts, and the Lawyers They Hate

• What Experts Don’t Like about Lawyers–“Toxic Egos”– See Marital Problems


Summary• We (experts; lawyers) think we are really

– smart, – conscientious,– thoughtful, – competent ,– decent, and – honest .

• We like it when they (lawyers; experts) are, too.

• We don’t like it when they (lawyers; experts) are not.


Advice?• Be

– smart, – conscientious,– thoughtful, – competent ,– decent, and – honest .

• Make sure counsel is, too.

Free advice, and worth every penny.


THANK YOU• Any questions?• Any question slide I should try to insert on

the fly? (I can try – or you can!)

Afterthoughts?Please write to [email protected]

fewa – san francisco chapter dinner meeting, 3/9/11

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