Trial Tactics Experts’ Prior Testimony The “Adoptive Admission”

By Tracey L. Turnbull Provision of FRE and Brodie M. Butland 801(d)(2)(C)

Contradictory Selecting an expert witness is a critical litigation decision. authority in the area It goes without saying that a litigator should thoroughly underscores that even vet every expert. But as every experienced litigator knows, the best preparation developments in a case can transform an expert from an asset buttressing a case into a liability In light of one of these unforeseeable may not always prevent undermining it. developments, a retaining party may con- • An expert may make concessions during sider dropping an expert as a trial wit- expert witnesses from his or her deposition that greatly dam- ness to avoid undermining its case. While ages the retaining party’s case. the loss of an expert can be detrimental becoming potentially • An expert may make statements dur- to a case, attorneys often overlook a sepa- ing his or her deposition that undercut rate and potentially more disastrous land- damaging witnesses. another expert, fact witness, claim, or a mine: the “adoptive admission” provision combination of these. of Federal Rule of Evidence 801(d)(2)(C). • An expert may have a horrible testimo- Under this provision, even if a retaining nial demeanor. party does not call its expert to testify dur- • An expert may have prior criminal con- ing a trial, the opposing party nonetheless victions, civil liabilities, or other sim- may be able to use that expert’s prior tes- ilar bad acts that a retaining party did timony as an “adoptive admission” to sup- not learn of until afterward. port its own case. • New evidence may force an expert to Unfortunately, the extent to which an op- reach a different, unfavorable con- posing party may use an expert’s prior testi- clusion given his or her experience or mony as an adoptive admission is far from methodology. clear. Three separate lines of authority have • New evidence may allow a party to claim emerged in the Fifth and Third Circuits and greater damages after an expert has the U.S. Court of Claims. One line holds that opined to a reasonable degree of profes- an expert’s statements constitute a party-­ sional certainty that the damage figure opponent admission once a party has desig- was significantly lower. nated an expert and the expert provides an

■ Tracey L. Turnbull is a partner and Brodie M. Butland is an associate with Porter Wright Morris & Arthur LLP in Cleveland, Ohio. Ms. Turnbull’s practice focuses on litigating trade secret and intellectual property disputes, as well as product liability and employment discrimination claims. She is an active member of DRI, serving on its Trial Tactics, Commercial Litigation, and Women in the Law Committees. Mr. Butland concen- trates on complex commercial litigation. He is a member of the DRI Young Lawyers Committee.

© 2012 DRI. All rights reserved. For The Defense ■ September 2012 ■ 41 Trial Tactics opinion. Another line holds that an expert’s eral Rule of Evidence 801(d)(2)(C), which the legal quagmire emerges three primary prior testimony is never a party-­opponent attorneys and courts typically rely on to lines of authority running the entire gamut admission without direct evidence of an deem expert deposition testimony a party-­ of approaches. Each of these approaches is agency relationship. The final line holds that opponent admission. Second, this article discussed below. an expert’s prior testimony becomes a party-­ explains the three lines of authority that opponent admission only once the expert is courts follow in deciding whether prior The Most Extreme Approach: designated as a trial witness. testimony of an expert not called to testify Collins v. Wayne Corp. The inherently contradictory author- during a trial can become evidence read An early approach to the question of admis- ity and the lack of a governing precedent into the record as a party-­opponent admis- sibility of an expert’s deposition against the sion. Third, this article suggests tactics that retaining party, generally credited as orig- you can use if you encounter these lines of inating with Collins v. Wayne Corp., 621 authority, or when a jurisdiction has not F.2d 777 (5th Cir. 1980), is that an expert’s Under the Collins line adopted one yet. statements are attributable to a party as an admission under Fed. R. Evid. 801(d)(2) of cases, an expert is Adoptive Admissions: (C) once a party has designated an expert FRE 801(d)(2)(C) as such and the expert has rendered some presumed to speak for Federal Rule of Evidence 801(d)(2) states form of opinion. It is, therefore, irrelevant that admissions by a party-­opponent are to these courts whether or not the expert the party that retained not hearsay. Courts holding that at least in will testify during a trial. some circumstances prior testimony by an In Collins, a party retained an expert the expert regardless expert constitutes a party-­opponent admis- to investigate and analyze a bus accident sion rely on the “adoptive admission” pro- and report on the bus speed and its impact of whether the expert vision in subsection (C) of the rule, which with a tractor-­trailer. Before the trial, the states: “A statement is not hearsay if… [t]he defendant sought to exclude the expert’s testifies during a trial. statement is offered against a party and deposition because he was merely a “con- is… a statement by a person authorized sultant.” Id. at 780. The Fifth Circuit held by the party to make a statement concern- that deposition testimony of an expert em- in most federal jurisdictions can create ing the subject[.]” Fed. R. Evid. 801(d)(2) ployed by a bus manufacturer to investigate a quandary when trying to decide how (C). To determine whether the statement an accident was an admission under Fed- to proceed with a potentially ineffec- was authorized by the party, a court must eral Rule of Evidence 801(d)(2)(C) because tive expert. The conservative approach consider the contents of the statements, the expert witness was an agent of the de- would involve designating the expert as but they cannot alone establish authoriza- fendant, who employed the expert to inves- a potential trial witness in the event that tion. Fed. R. Evid. 801, Advisory Commit- tigate and analyze the bus accident. Id. at the expert becomes necessary during the tee Notes (1997). 782. The court found that in providing his trial. This approach may be warranted According to the committee notes, sub- deposition, the expert performed the func- when a retaining party would prefer to section (C) was phrased broadly to encom- tion that the manufacturer had employed use other evidence to establish liability or pass statements to third persons and him to perform. Specifically, the expert’s damages instead of its expert but that evi- statements by an agent to the principal— investigation report and deposition testi- dence is subject to pending admissibility it does not apply solely to statements made mony explaining his analysis and investi- challenges. In other words, the retain- to third parties. Id. However, the Advisory gation was an admission of the defendant. ing party needs the expert just in case the Committee did not indicate whether, or to Id. The district court erred in failing to ad- court rules the other evidence inadmissi- what extent, a retained expert’s opinions mit the testimony as a party-­opponent ad- ble. Yet this precautionary approach may and prior testimony constituted a party-­ mission, though ultimately the Fifth Circuit allow the opposing party to read parts of opponent admission as an authorized state- found the error harmless. Id. at 782–83. the expert’s deposition into the record as a ment by a party. Several courts not within the Fifth Cir- party-­opponent admission and undermine cuit have adopted the Collins rule. Long v. other evidence of damages if the expert Three’s a Crowd: The Collins, Kirk, Fairbank Farms, Inc., No. 1:09-cv-592, 2011 ultimately becomes unnecessary. and Glendale Lines of Authority WL 2516378 (D. Me. May 31, 2011); Dean This article assesses different strate- In discussing cases addressing the use v. Watson, No. 93-C-1846, 1996 WL 88861 gies available to you when you either seek of an expert’s deposition testimony as a (N.D. Ill. Feb. 28, 1996). See also BNSF Ry. (1) to prevent an opposing party to use party-­opponent admission, Glendale Fed. Co. v. Lafarge Sw., Inc., No. 06-1076, 2009 your party’s expert’s prior testimony as an Bank, FSB v. United States, 39 Fed. Cl. 422, WL 4279850, at *4 n.3 (D.N.M. Feb. 3, 2009) adoptive admission during a trial; or (2) to 423 (1997), aptly observed that “[t]his area (finding that parties adopted expert’s opin- use the testimony of an opposing party’s of law is murky at best with several diver- ions because they designated the expert as expert as a party-­opponent admission dur- gent streams and many highly fact specific such after knowing his opinions). Courts ing a trial. First, this article reviews Fed- eddies making up the case law.” But from have applied Collins to the trial setting and

42 ■ For The Defense ■ September 2012 to pretrial motions practice. In Long, cross-­ “the entire premise of calling expert wit- The extension of Kirk to expert depo- claimants sought summary judgment on nesses.” Id. at 164. As the court explained, sition testimony in the same litigation is indemnification and other related claims. despite the fact that one party retained exemplified by Soitec, SA v. Silicon Gene- 2011 WL 2516378, at *1. In their briefing, and paid for the services of an expert sis Corp., No. 99-10826, 2002 WL 34453284 third-party plaintiffs cited the deposition witness, expert witnesses are supposed (D. Mass. Feb. 25, 2002). In that case, an testimony of an expert retained by third- to testify impartially in the sphere of expert was designated as a trial witness party defendants and argued that it con- their expertise. Thus, one can call an of the plaintiff but later withdrawn. The stituted a party-­opponent admission under expert witness even if one disagrees with defendant then attempted to introduce Federal Rule of Evidence 801(d)(2)(C). The the testimony of the expert. Rule 801(d) his prior deposition testimony as a party-­ third-party defendants responded that the (2)(C) requires that the declarant be opponent admission under Federal Rule expert was hired “to fully explore and an agent of the party-­opponent against of Civil Procedure 801(d)(2)(C). The court better understand the allegations against whom the admission is offered, and this expressed its agreement with Kirk that it,” the defendants “always expected [the precludes the admission of the prior tes- in the relationship between a lawyer and expert] to testify impartially,” the expert timony of an expert witness where, as expert, the “expert is more like an inde- was never subject to defendants’ control normally will be the case, the expert has pendent contractor offering his own opin- nor authorized to make admissions for the not agreed to be subject to the client’s ion and is not ‘controlled’ by the party who defendants, and the defendants had not yet control in giving his or her testimony. employs him.” Id. at *1. As a result, determined whether they would call the Since an expert witness is not subject to [t]he adoptive admission theory falters expert to testify during the trial. Id. at *9. the control of the party opponent with because it cannot be said that [the plain- “Even taking all of these assertions at face respect to consultation and testimony he tiff’s] actions represent acquiescence value,” the court held that the expert “was or she is hired to give, the expert witness in or adoption of every aspect of [the authorized by [the third-party defendants] cannot be deemed an agent. expert’s] testimony, and particularly to make a statement concerning the sub- Id. (citations omitted). Applying this analy- the comment on which [the defendant’ ject matter about which he testified,” and sis, the Kirk court noted, “because an expert wants to rely, which was made in the his statements constituted party-­opponent witness is charged with the duty of giving course of the deposition…. [C]ounsel for admissions under Federal Rule of Evi- his or her expert opinion regarding the mat- the employing party is under no obliga- dence 801(d)(2)(C). Id. at *10. Among other ter before the court, we fail to comprehend tion to state ‘we agree with that state- authorities, Long cited Collins for support. how an expert witness, who is not an agent ment,’ or ‘we disagree with that one.’ Id. Id. The court did not find it persuasive that of the party who called him, can be autho- The court rejected the agency theory of the expert was not subject to control by rized to make an admission for that party.” admission of Federal Rule of Evidence the third-party defendants, as that would, Id. (emphasis in original). Based on this rea- 801(d)(2)(D) on the same grounds. Id. at most, have indicated that there was not soning, Kirk held that an expert’s deposition Similarly, a bankruptcy court, though an agency relationship sufficient to find a in a prior, unrelated case could not be used acknowledging Collins, also followed Kirk’s party-­opponent admission under Federal to impeach a party in a pending case. Id. reasoning and held that the deposition Rule of Evidence 801(d)(2)(D). Id. Though Kirk involved an attempt to use testimony of an expert identified by the Under the Collins line of cases, an expert expert testimony from prior, different liti- debtor, but not called during a trial, was is presumed to speak for the party that gation as an admission in a present case, inadmissible hearsay evidence. In re Hid- retained the expert regardless of whether Third Circuit courts have applied Kirk with den Lakes Ltd. P’ship, 247 B.R. 722, 724 the expert testifies during a trial. Accord- equal force to experts retained in the same (S.D. Ohio 2000). Citing Kirk, the court ingly, Collins and its progeny allow an litigation. See St. Paul Fire and Marine noted that “expert witnesses are supposed expert’s deposition to be used against Ins. Co. v. Nolen Group, Inc., No. 02-8601, to testify impartially in the sphere of their the retaining party under Federal Rule 2007 WL 2571524, at *7 n.6 (E.D. Pa. Aug. expertise,” and nothing suggested that the of Evidence 801(d)(2)(C) with very little 31, 2007) (“Although [one case] distin- debtor had actual control over the testi- restriction. guished Kirk on the basis that Kirk dealt mony or conclusions of the expert. Id. The with expert testimony provided in a prior court thus precluded the non-­testifying The “Independent Expert”: litigation, rather than in the same litiga- expert’s deposition testimony. See also Kirk and Soitec tion, the distinction is unavailing. The crit- Pfizer, 2005 WL 2296613, at *2 (finding On the opposite end of the spectrum, ical distinction is whether an expert is, on no adoptive admission because the plain- courts find that an expert’s deposition can- the record, an agent of the party.”); Pfizer, tiff had not provided “independent proof not be used against the retaining party as Inc. v. Ranbaxy Labs., Ltd., No. 03-209, of the existence of [the expert’s] authority an admission because the expert is consid- 2005 WL 2296613, at *2 (D. Del. Sept. 20, to speak for [the defendant]”). ered “independent.” This view is exempli- 2005) (“[T]he Court does not read Kirk to A handful of courts have also employed fied by the Third Circuit’s decision in Kirk be limited to circumstances involving the Kirk’s reasoning when an expert had tes- v. Raymark Indus., Inc., 61 F.3d 147 (3d Cir. prior trial testimony of a witness.”); Bostick tified and been cross-­examined but the 1995), in which the court stated that the v. ITT Hartford Group, 82 F. Supp. 2d 376, opposing party wished separately to admit “agency theory” set forth in Collins misses 379 (E.D. Pa. 2000) (same). the expert’s prior deposition testimony as

For The Defense ■ September 2012 ■ 43 Trial Tactics a party-­opponent admission. These cases “would unduly intrude on a party’s ability lar rule drawing a clear line between when rejected Collins and found that the expert’s to control its own case,” as well as “inhibit a expert opinions qualify as statements of testimony did not constitute an adoptive party’s attempt to fully explore and under- party opponents”); In re Hanford Nuclear admission. They also noted that the proper stand its own case.” Id. at 424. On the Reservation Litig., 534 F.3d 986, 1016 (9th time to address prior deposition testimony other hand, Glendale rejected Kirk’s prem- Cir. 2008) (citing Glendale and holding was during the expert’s cross-­examination. ise that to constitute an adoptive admis- that an expert’s testimony from the “first Smith v. United States, No. 3:95-cv-445, sion under Federal Rule of Evidence 801(d) bellwether trial” in a multistage trial was 2012 WL 1453570, at *31–32 (S.D. Ohio Apr. (2)(C), the expert must be an agent of the admissible as an adoptive admission in a 26, 2012) (rejecting Collins and adopting party. Rather, Glendale noted that Federal subsequent trial stage). Rule of Evidence 801(d)(2)(C), which con- The Glendale line of authority seeks to cerns “person[s] authorized to speak,” is compromise the two extremes exempli- separate and distinct from Federal Rule fied by Collins and Kirk by holding that Under the Kirk analysis, of Evidence 801(d)(2)(D), which concerns an expert’s prior testimony only becomes agents. Id. an adoptive admission when the expert an expert’s prior testimony The court ultimately determined that is designated as a trial witness. The testi- an expert’s deposition testimony may be mony of an expert withdrawn prior to trial is not deemed to be an an adoptive admission once the expert was will not be admissible against the retain- designated as a trial witness, since by that ing party under Federal Rule of Evidence adoptive admission without point the court “may assume that those 801(d)(2)(C). experts who have not been withdrawn are independent proof that a those whose testimony reflects the position Navigating Uncertainty: Using of the party who retains them.” Id. at 424– an Opponent’s Expert and retaining party has control 25. Importantly, Glendale was not based Protecting Your Own on a “retroactive[] finding [of] agency or Not having a uniform standard for admit- over the testimony or control at the time of a particular depo- ting an expert’s prior deposition testimony sition”; rather, Glendale’s rule was based as a party-­opponent admission complicates conclusions of an expert. solely on the perception that “[t]he begin- understanding the circumstances under ning of trial is a critical juncture” when it which courts may admit an expert’s prior was “fair to tie the party to the statements deposition testimony as an adoptive admis- Kirk to preclude testimony); Koch v. Koch of its experts.” Id. at 425. The court, there- sion. However, we have some general sug- Indus., Inc., 37 F. Supp. 2d 1231, 1244– fore, permitted the plaintiff to use deposi- gestions for approaching the issue when you 45 (D. Kan. 1998), rev’d in part on other tions of two of the defendant’s experts as seek to protect an expert’s deposition testi- grounds, 203 F.3d 1202 (10th Cir. 2000). party-­opponent admissions because those mony, or, conversely, to use an opponent’s. Thus, under the Kirk analysis, an experts were not withdrawn before the expert’s prior testimony is not deemed to trial. Id. The court, however, prohibited the Protecting Your Own Expert be an adoptive admission without indepen- use of a third expert’s deposition as a party-­ When a party’s expert is a potential liability dent proof that a retaining party has con- opponent admission because he had been the party should ensure that it does not trol over the testimony or conclusions of withdrawn before the trial. Id. open the door to an adoptive admission by an expert. This is even true for experts who Numerous courts have found Glen- unnecessarily designating the expert as a are designated as trial witnesses but subse- dale’s reasoning persuasive and allowed trial witness. Practitioners in the Fifth and quently withdrawn. an expert’s prior deposition testimony as Third Circuits have a reasonable expecta- an adoptive admission if the expert was tion of how courts will analyze the issue: Trial as the “Critical Juncture”: Glendale designated as a trial witness. Cadlerock Fifth Circuit courts will likely follow Col- The third approach, originating with Glen- Joint Venture, L.P. v. Royal Indem. Co., No. lins, and Third Circuit courts will likely fol- dale Fed. Bank, FSB v. United States, 39 Fed. 02-16012, 2012 WL 511531, at *1, 3 (N.D. low Kirk. In these jurisdictions, it appears Cl. 422 (1997), attempts to create a mid- Ohio Feb. 15, 2012) (excluding the expert’s that a party will not suffer a meaningful dle ground between Collins and Kirk. On deposition testimony because the expert disadvantage by designating the expert as the one hand, Glendale agreed with Kirk’s was withdrawn before the trial); Mann v. a trial witness. premise that an expert “is expected to give Lincoln Elec. Co., No. 1:06-cv-17288, 2010 As for Glendale courts, you may face a his own honest, independent opinion,” U.S. Dist. LEXIS 43824, at *3–6 (N.D. Ohio fundamental strategic difficulty. It is a rel- and that “[h]e is not the sponsoring par- May 5, 2010) (same); Minebea Co., Ltd. v. atively easy decision to abandon an expert ty’s agent at any time merely because he is Papst, No. 97-0590, 2005 WL 6271045, at *1 who significantly undercuts a party’s case retained as its expert witness.” Id. at 423. (D.D.C. Aug. 2, 2005) (same). See also Dur- during a deposition or whose opinion no Glendale noted that deeming a deposition ham v. Cty. of Maui, 804 F. Supp. 2d 1068, longer appears to be valid—and under Glen- to be the point at which an expert’s views 1070 (D. Haw. 2011) (finding Glendale “per- dale, the opposing party will not be able to become attributable to the retaining party suasive” but declining to “craft a particu- use that expert’s deposition testimony as an

44 ■ For The Defense ■ September 2012 adoptive admission. The difficulty arises, sion.” In In re Welding Fumes Prods. Lia- mitigate the damage through counter des- however, when you can potentially estab- bility Litig., No. 1:03-cv-17000, 2010 WL ignations under the rule of completeness. lish a significant point through other evi- 7699456 (N.D. Ohio June 4, 2010), the court dence, including another potential expert, found that an expert’s prior testimony Using an Opponent’s Expert but your opponent likely will challenge that “did not make a clear, admissible admis- The strategy differs significantly when you evidence. In those circumstances, you jus- sion.” Id. at *31. Further, the court noted contemplate using an opponent’s expert tifiably would not want to abandon an ex- that if the court admitted the deposition testimony as an adoptive admission. Prior pert without confirming the admissibility statement as evidence, “it would have to testimony of expert witnesses generally of the other evidence. However, in practice, be accompanied by [the expert’s] expla- seems admissible as an adoptive admission courts often cannot resolve evidentiary ad- nation, as well[,]” and the combined tes- in Collins jurisdictions. For Glendale juris- missibility issues before the parties must timony “would be unduly confusing to a dictions, your approach will depend on the disclose their trial witnesses. jury, carry very little probative value to the goal. If you want to encourage the oppos- In such circumstances, you could file a defendants’ case, and, in the end, carry no ing side to strike its expert altogether, then motion before the deadline for identify- clear ‘admission.’” The court thus refused you may want to raise the adoptive admis- ing trial witnesses seeking an expedited to admit the expert’s previous deposition sion issue before the parties must desig- determination of outstanding admissibility testimony. Id. at *32. Depending on the nate trial witnesses. In contrast, if you issues, or, alternatively, for permission to nature of the testimony the opposing party seek to ensure that a court will have adop- withdraw the expert upon the admissibility seeks to admit, you may move to preclude tive admissions read into the record, then ruling without rendering the expert’s prior the testimony because it does not consti- you should not raise the use of an expert’s deposition testimony a party-­opponent tute an “admission.” This would especially prior testimony as an adoptive admission admission. The Glendale rule was founded hold true in cases where subsequent evi- until after an opponent has designated the on a presumption “that those experts who dence undermined an expert’s conclusions. expert as a trial witness. have not been withdrawn are those whose Many of these strategies also apply to The same applies to jurisdictions that testimony reflects the position of the party jurisdictions that have not considered have not yet adopted an approach. If your who retains them.” Glendale, 39 Fed. Cl. whether and when an expert’s prior testi- goal is to gain adoptive admissions for a at 424. That presumption, however, argu- mony constitutes an adoptive admission. trial, you should delay raising using an ably is not appropriate when a party desig- If a jurisdiction has not yet considered the expert’s prior testimony until after an nates an expert as a witness only because of issue, you preemptively could move to pre- opponent has designated the expert as a pending admissibility issues for other evi- clude the expert’s deposition testimony trial witness. Once an opponent has desig- dence, and the party cannot establish its as a party-­opponent admission, arguing nated the expert as a trial witness, you may litigation position without judicial guid- that a court should adopt Kirk. Should a use the expert’s prior testimony as an adop- ance. Without a ruling, you must choose court have the inclination to adopt Glen- tive admission if the court adopts either the lesser of two evils based on the best dale, you alternatively could seek an expe- Collins or Glendale. available information. dited determination of the admissibility of Kirk and its progeny pose the most diffi- Additionally, even if you identify an evidence, or permission to withdraw the culty when you want to use the testimony expert as a trial witness but later withdraw expert when the court rules on admissibil- of an opposing party’s expert because they that expert, you still have means of miti- ity, as discussed above. As with the Glen- support precluding litigants from using gating or eliminating the potential damage dale preemptive motion, you should file the testimony of independent experts as from the prior testimony. First, all depo- this motion well in advance of the trial wit- adoptive admissions. That said, you still sition testimony is subject to the rule of ness disclosure deadlines. can use the prior testimony of the oppos- completeness in Federal Rule of Civil Pro- If a court rejects a preemptive motion ing party’s expert as an adoptive admission cedure 32(a)(6) and Federal Rule of Evi- or declines to provide an expedited admis- if the opposing party controls the expert’s dence 106, which provide that when a party sibility ruling, then you will have to make opinion or testimony. While this typically introduces part of a deposition as evidence, the best decision possible based on the cir- will not apply to third-party experts, it an adverse party may require the offer- cumstances. Sometimes not designating may apply to in-house experts or to other ing party to introduce at the same time an expert as a trial witness may be the best experts who have an agency or employment any other portion of the deposition that strategic decision under the circumstances. relationship with an opposing party. Thus, in fairness should be considered with that Other times, you may need to designate even in a Kirk jurisdiction, you may have part. Thus, if an opposing party designates an expert as a trial witness in case a court grounds for admitting an expert’s prior tes- for the record an expert’s testimony as an refuses to admit other evidence as inadmis- timony under certain circumstances. adoptive admission, you could mitigate sible. In those cases, you will have to brief that testimony by calling for counter des- the issue. If a court adopts Glendale or Col- Conclusion ignations to ensure a fair evaluation of the lins, you should take all necessary steps to Even the best preparation does not always admissions cited by the party opponent. preserve the issue for an appeal, and then prevent expert witnesses from becoming Second, you should question whether the try to exclude the proposed deposition potentially damaging witnesses. When testimony actually constitutes an “admis- testimony as not truly an “admission” or Expert Testimony, continued on page 85

For The Defense ■ September 2012 ■ 45 Expert Testimony, from page 45 the expert’s prior testimony as an adoptive stand the three lines of authority on prior ney sometimes may have to designate that admission against the attorney’s party. You expert testimony as an adoptive admis- expert as a potential trial witness even if should remember that some jurisdictions sion to identify strengths and weaknesses the attorney probably will not call him or permit this, keep in mind the ones that of each persuasively in jurisdictions with- her to testify during a trial. In jurisdictions do, and understand the grounds for using out governing rules so that you can obtain allowing adoptive admissions, this tac- an expert’s prior testimony as an adop- the most favorable result. tic could mean that an opponent may use tive admission. You should also under-

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