PRESIDENT'S MESSAG E by GeotfTrachtenberg

An lndian auto-rickshaw driver-and countless other people-leads us to consider gratitude.

Thanks Made Uisible

I'm a student of happiness Notice I didn't say Zen President of the State Bar offuizona owitittg

about happinessl Does he think he's a

therapist) Or does he need onel What does

that have to do with the pracrice of law infuizonal

The reason is because, in addition tobeing gratefrrl for the honor ofleading the

Bar, I'm gratefirl for the Bar itselfand for my fellow lawyers who are a

part of it. We are a lucþ lot. And this

month we will once again celebrate

with our families the American tradi-

tion of grateñrlness: Thanksgiving.

One thing we all know about the

experience of gratefrrlness is that we

sometimes experience it by lookingelsewhere. Whether it is seeing the

struggles or losses of others orsimply comparing and conuastingour circumstances, we are gentlyreminded to be appreciative-to be

gratefrrl.

This summer I wæ lucþ enough

to travel through India, a place

that's hot, chaotic, noisy, crowded

and overwhelmingly poor. It is

also a colorfirlly happy place where

people are remarkably kind to one

another, where even the desperately

poor wear the most unlikely smiles,

and where thanksgiving is rituallyobserved every day along the ûlthy banks ofthe Ganges.

The State Bar of Arizona and the practice

oflaw in fuizona are not perfect, and indeed,

last year there was an attempt to dissolve the

Bar in our lrgislature. Because we're boundto face that challenge again, I'd invite you

to reflect on how that would be a terrible

mistake. As someone who is licensed by four

bars and actively practices in those states, Iam constantly struck by the remarkable skill

and professionalism of the lawyers in our

state. The State Bar of fuizona is a key con-

tributor to that end.

So when it comes to the State Bar ofAnzona or even the personal struggles we

face throughout the year, let's not once

again have to relearn the lesson that "youdon't know what you've got until its gone."

Instead, let's work to make your Bar and the

practice oflaw in Anzonaeven better. EE

Mæter.

I'm still learning every single day, and many days I have to relearn the

same lessons over again. Nevertheless, I'm going to teach you one of the

most important lessons I've learned about happiness. Consider it the "yogaof happines," something to exercise your body and soul daily.

You don't know what you've got until it's gone.

There is nothing truer in the human condition. It's true of people inyour life, freedom, health, justice, love, money, power) pets, reputation,

safety, security, success, and even 'þur stuff." It's every little thing, from

air in your tires to ru¡rning'r¡/ater in your home. It all represents the nutri-

ents of happiness and, until it's missing, you never wanted it so badly.

You see, happiness is not a destination, and the dogged "pur-suit of happiness" is a sure sign you're (I) not happy and (2)

never going to be happy while in such hot pursuit. Happiness is

also not a pro{uct or an end.

We all seem to knowthis intuitively, butwe still seem to thinkas though we're on a road trip to a place called Happyville.

Or chiseling away, like Michelangelo, at a piece of marble touncover Tlte Døpid. of Høppinesthat will natwally emerge. ButHappyville is not on the GPS, and it is certainly not an enduring,well-chiseled product of our efforts.

Happiness is gratefrrlness.

There it is. That's it. That's the important lesson I've prom-ised. It's simple, really. If we were all to begin each day by

recounting "how lucky" we are) we'd be a lot happier.

Why should this matterf Or, more important, why is thelr*L.+

\."*..6 ABIZ0NA ATT0RNEY I'I0VEMBER 2015 www.azbar.org/AZAttorney

To set the stage, consider the fottow-ing data provided by PriceWaterhouseCoopers (PWC) from a nationa[ studythey conduct each year:

NUMBER OF CHATTENGES FOR ALL EXPERTS:

I 253 in 2OOOI9t3in2O!3(3600/0increase)

EXPERT WITNESSES EXCTUDED:

I Exctusions in 2013............. .......... 48o/o

r Average exctusions 2000-13 ......460/o

REASONS FON EXCLUSIONS:

r Lack of Retiabi tity........ ---.......... 45o/o

r Lacl< of Retevance........ ................. tïo/or Quatifi cations 0n|.y...................... tOo/o

I Retiabi tity û Retevance .............. 15o/o

r Retiabitity & QuaLifi cations...........3o/o

t Retevance & Quatifi cation s ..........3o/o

r Retiabitity, Relevance andQuatifi cations. ........ *-*.. ---..........3o/o

r Missed Deadline.......... -*..-............3o/o

This data shows that, when a DaubertChattenge is made, it is successful aþmost one-ha[f of the time. Ïhis means

that the best strategy is to minimize thepotentiaI that a chattenge witt be fited.

When working with an exPert, it is

important for attorneys to extract thegreatest value from any expert on any

case. Expert witnesses are advised toconsider the fottowing practices inorder to minimize the potential thata chattenge witl. be fited; and that iffited, to minimize the potential for itto be successfut.

ADVEBTISEMENT

I Make sure oll octivities support theopinions

o Examptes inctuded cases wherethe expert provided contradictoryopinions in their dePosition andwhere their file did not suPPortthe worl< they were said to haveperformed.

t Build a foundation Jor oPinions

o Uttimatety an opinion which isnot buitt on a sotid foundationis simpl.y specutation. And, theexpert opinion must fit withinthe [ega[ framework of the case

I Base the opinion on the mostsupportable onswer

O Fottow the evidence; do not tryto make the evidence fit theopinion the client wants.

t Mínimize assumptions and estimotes;provide a basis for assumptions andestimotes

O Assumptions and estimates are

required in almost every case.

This is because evidence is oftenincomptete. The expert shoutd do

whatever they can to suPport thereasons for the need for assumP-tions and estimates and whY theassumptions and estimates madeare reasonabte.

o When an expert is invotved eartY

in the discovery process, theexpert is abte to assist counsel inobtaining the maximum benefitfrom discovery in four key areas:

drafting a request for production;outtining interrogatory questions;providing deposition questions;and assisting in research.

t Meet oll report requírements

o The Federal Rules of Evidence inparticutar are very sPecific as towhat is expected for an exPertwitness to include in their report.Every expert and every attorneYshoutd have a checktist of theFederaI requirements to assurethat atl requirements are met.State courts are not as sPecificso the expert shoutd worl< withCounsel to mal<e sure [oca[ rulesare met.

) lhow how the expert testimony willossist the trier of factO Every opinion issued shoutd have

the specific purpose of assistingthe trier of fact in arriving at a

decision.

Expert Witness Exctuded!

Having an expert witness excludedcan be a disaster for the attorney and

for the expert. This is a situation wherethe attorney and expert must work as

a team.The time for the attorney to chat-

Lenge their own expert is before thereport is issued. This is atso the timewhen the ðttorney can worl< with theexpert to mal<e sure the report pro-

vides the most ctear and supportabteopinions possible.

How to Minimize the Potentialfor a Daubert ChallengeWhen a Daubert Chollengeis made, data showsthatitissuccessÍul neorly half of the time.

The best strategy ís to minimize the potentíalthat a

challenge will be fiIed.