Trial Academy A Field Guide to the Care and Feeding of Experts: Direct Examination Daniel J. Scully, Jr. Clark Hill, PLC 500 Woodward Avenue, Suite 3500 Detroit, MI 48226-3485 Phone: 313.965.8468 Fax: 313.965.8252 [email protected] Copyright © 2006 by the International Association of Defense Counsel. All rights reserved. 1 1 Introduction The purpose of this paper is to provide you with one individual’s view regarding the selection, care and feeding of an expert’s direct examination at trial. There are many sources of information regarding the topics covered in this paper and I would encourage you to take advantage of as many of them as you possibly can to develop a personal and successful approach to this task. Throughout this paper, we will review several topics, including: (1) some recommendations regarding the selection of experts; (2) critical elements in developing a working relationship with the experts you select; (3) concerns and issues which will arise during the deposition of your expert; and (4) thoughts regarding the preparation and execution of a successful examination at trial. As we proceed, it is important for you to realize that the direct examination of an expert at trial is all about the witness and not the lawyer. The witness will be telling the story, or the portion of the story which you view as being critical to your case in chief. In my view, this is far different than a cross examination, which can, in many ways, pit the wit and intelligence of the cross examiner against that of the expert being examined. In other words, and in contrast to direct examination, cross examination typically becomes more about the lawyer than the witness. The Selection Process First of all, I think we should clarify some preliminary issues which sometimes are not addressed because they appear so obvious. These issues can be summarized in the following series of questions: Do I need an expert? What type of expert do I need? Who should I retain? While these questions seem to be painfully apparent, they are sometimes overlooked and/or not Copyright © 2006 by the International Association of Defense Counsel. All rights reserved. 2 addressed until after an expert has been retained and a fair amount of time and money has been spent. The failure to address these issues at the beginning may result in an ultimate decision not . to use an expert at trial for reasons you should have discovered before he/she was retained. You also should be aware that in some jurisdictions if you retain an expert and they are identified in discovery but not used at trial, the fact that they were not used at trial can be commented upon by your opponent and/or can be the subject of an adverse jury instruction. An expert is an individual with specialized knowledge either through training, education and/or experience, which enables that individual to offer opinion testimony at trial for the purpose of assisting the finder of fact in understanding a particular area or issue in which the individual has an alleged expertise. Thus, you did not need an expert if the opinion testimony is such that it is within the realm of understanding of the common person. Assuming you conclude that you need an expert, the next issue to tackle is what type of expert should you retain. Obviously this will be case dependent. During this process, keep in mind that when representing a corporation or other business entity, it is imperative that you involve your client in every step of the analysis and selection of the expert. Your client may have had prior experience with particular experts or types of experts and that input will be critical in the selection process. Once you have concluded that you need an expert and you have decided what type of expert that you wish to retain, you next need to identify appropriate candidates. There are several resources of which I recommend you take advantage to assist you in this process. For example, make inquiries within your firm and to other colleagues outside your firm that practice in the same area as you, consult an “expert bank” maintained by DRI and other organizations, Copyright © 2006 by the International Association of Defense Counsel. All rights reserved. 3 make inquiries with experts other disciplines that you have used in the past for recommendations, and of course, obtain whatever information you can from your client with respect to their individual experiences as well as their industry’s experience of a particular expert or type of expert. After you have compiled a list of potential experts, you must analyze each candidate from the standpoint of whether their personality will fit within the theme of your case and their potential effectiveness as a communicator of the portion of the story that you will tell through them. You must carefully evaluate the candidate’s strengths and weaknesses, which can be accomplished in several ways. The first and most obvious way is during an interview with the candidate. Make sure that you ask some difficult questions. Probe whether or not the expert will provide honest answers or if their responses are sufficiently pliable that you feel you may have some future difficulties with them. Ask them for a copy of their FRCP 26 list. Contact the attorneys that have retained the candidate in the past and seek honest input from them. You should also make a point of asking the candidate about his/her Daubert history. Have they been challenged? How often? Which jurisdictions? Are the subject of any court opinion, and if so, where? What were the nature of the Daubert challenges? What were the results of those challenges? While this can be a difficult conversation to have with an expert, it nonetheless must take place. In addition, you should conduct searches on relevant data bases on your own. You can be assured your opponent will certainly do so. Additionally, I suggest that you read any prior testimony of the candidate that you can locate. Your opposing counsel will no doubt do the same and having a general idea of the areas in which your candidate has testified in the past may help you make an ultimate determination of Copyright © 2006 by the International Association of Defense Counsel. All rights reserved. 4 whether or not to retain that individual. There are several sources for this type of information. You can inquire of expert banks, other counsel and possibly your client for this type of material. Consider requesting a copy of the expert’s transcripts to add to your file in case an issue arises. If the expert is reluctant to give you that information, that should be a warning to you that there may be something in those records about which the expert is less than enthusiastic. That in and of itself should tell you that you need to get a copy of those transcripts to review. If the expert has received graduate degrees, thoroughly investigate the subject of any thesis that the expert has authored or research conducted. If the expert has published, it will be important for you to determine which publications have been peer reviewed and which have not. Obtain copies of the material and include it in your file. If the list of publications is reasonably modest, read each of the publications with care. If the list of publications is extensive, however, which oftentimes it is, inquire of the expert which are the works that have even marginal association with the task being assigned in your case and then read each and every one of those articles. You can be certain that your opposition will be doing so in the hopes of finding information which may arguably be contrary to the opinions that will be expressed on your client’s behalf by your expert and/or may tend to give credence to the opinions being expressed by your opposition’s experts. You must to be equally familiar with your expert’s publications. If the expert that you are considering is someone who is new to you and you have not been able to generate a sufficient body of information regarding the individual, there are several services that you can take advantage of in order to independently confirm your expert’s training, background and experience. One source is through the IADC, another is the DRI, and other services such as IDEX, which will search their data base for information on the testimony of any Copyright © 2006 by the International Association of Defense Counsel. All rights reserved. 5 expert. Other preliminary matters which should be reviewed include bias-related topics, such as how often has the individual testified on behalf of your client or the industry to which your client belongs, how often has the individual testified for you or other members of your law firm, and whether the witness has ever testified for “the other side.” It should come as no surprise that experts are expensive. Regardless of whether you are representing a corporate client or an individual, it will be important for you to obtain as much information as is reasonable from the expert regarding the potential budget for the amount of work involved in your particular case. Whenever possible, try to get an approximation or a range from the expert as early in the selection process as you can. Many corporate clients now require an expert budget and place a great deal of pressure on counsel to make sure that the expert’s activities fall within that budget. This also enables counsel to avoid the “sticker shock” that may occur should the client’s expectations with respect to expert fees be less than reasonable.