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July 31, 2018 Articles

How Not to Fail at Trial Because of Your Expert: Part Two

The second in a three-part series addressing best practices when working with expert witnesses

By Jeffrey D. Gardner, Jimmie Pursell Jr., and Sumon Mazumdar

This article is the second in a three-part series addressing best practices when working with expert witnesses. In part 1 of the series, we focused on strategies for identifying, vetting, and, ultimately, engaging a consultant or expert in the early stages of the litigation process. In part 2, we focus on best practices when collaborating with a consultant or expert witness during the discovery and pretrial stages of litigation.

Involve the Expert Early and Shape the Discovery Process

In the first article in this series, we encouraged counsel to start the process of identifying and engaging the consultant or expert witness early. Once the consultant or expert is retained, expert witness preparation should start immediately. Your expert witness can help shape offensive discovery, and you should not assume you know best what documents and information your expert witness will need to support her or his report. Similarly, trial attorneys must be prepared to get into the weeds of the science or area of expert testimony, but good attorneys also recognize their limitations and should rely on their expert witness to educate them early and thus enhance discovery strategy and process. In addition, your expert witness may provide excellent insight into lines of attack that might be pursued against both lay and expert witnesses during the deposition phase of discovery.

Share Documents Obtained in Discovery with Your Expert

After securing the expert witness’s input, counsel should serve discovery as early as practicable in the litigation. Counsel must promptly review and then provide the relevant documents and information to the expert witness for his or her consideration as far ahead of relevant expert report or disclosure deadlines as possible. Doing so will give the expert sufficient time to review such information and incorporate it into the report. Cases can be quickly derailed because of an attorney’s failure to timely deliver appropriate information to the expert witness. Equally important, the attorney and the expert should jointly set reasonable target dates for initial drafts that are sufficiently in advance of the expert report deadline. This will allow the attorney and the expert time to thoroughly analyze whether the expert has covered all areas that call for expert opinions and consider responses to challenges from opposing counsel that are inevitable in litigation.

It is important, however, that before sharing any documents with the expert and his or her team, counsel be absolutely certain about the forum’s rules pertaining to communications between counsel and the expert witness and the discoverability of expert report drafts. Federal law provides protections against the discoverability of draft reports and, with limited exceptions, communications between the lawyer and expert. However, certain states have rules that differ materially from Federal Rule of Civil Procedure 26(b)(4)(C). In some states, drafts, work product, and communications can be discovered, and inadvertently waiving any such privileges through communications with an expert can be devastating. Explaining to a client that such protections were waived because you did not understand the forum rules can be quite unpleasant. Therefore, you must establish the communication protocol from the outset of the retention and make sure such protocols are strictly adhered to; any question about whether or not something can or should be put in writing by the expert must first be discussed with counsel.

In sharing documents with the expert, it is often advisable to provide the expert witness with access to all documents and information in the case. Otherwise, the expert may be attacked on grounds that the he or she did not consider all relevant information in formulating opinions or, even worse, might have provided different opinions based on information made available in discovery that he or she did not see before finalizing the report. However, keeping time and budget constraints in mind, counsel could also identify the documents that are likely to be relevant to the expert’s possible testimony. While the expert is free to consider all documents, the expert report is required to list only those documents that the expert actually considered in formulating his or her opinions.

Speak with Your Expert Often Through the Discovery Process and Report Preparation Stage

Counsel and the expert witness should remain in close contact and speak often through the discovery and report preparation stage. This will allow sufficient time to address potential issues related to the expert’s opinions or counsel’s case strategy that the expert witness may bring up after reviewing case documents and information. By staying in close contact with the expert, counsel can also ensure that the report is progressing according to schedule.

The expert report. The first major task for an expert witness is preparing the expert report. According to Federal Rule 26(a)(2)(B), every expert report must identify or include the following: 

(i)        a complete statement of all opinions the expert will express and the bases for all such opinions;
(ii)       all facts and information considered by the expert in formulating all opinions;
(iii)      any exhibits the expert will use to summarize the opinions;
(iv)      the expert’s qualifications (including the expert’s publications);
(v)       a list of all other cases in which the expert testified at trial or by deposition during the preceding four years; and
(vi)      a statement of the expert’s compensation.

It should be apparent from such requirements that both the lawyer and the expert witness should maintain an inventory of all documents and information and ensure that the expert’s prior testimony or publications (or, for that matter, any presentations by the expert in the public domain such as a speech at a convention on YouTube) do not contradict the opinions in the expert’s report.

The level of detail provided in an expert report depends on the stage at which the report is being submitted and its purpose. For example, counsel representing plaintiffs in a securities fraud class action may require an expert to submit a report at the class-certification stage. This report typically will not quantify the class’s exact damages and instead will simply describe a methodology that, in the expert’s opinion, can be used later (if the class is certified and the case proceeds) to quantify damages common to all class members. In contrast, a plaintiff’s damages expert in the same class action will have to provide more details and quantify damages based on data obtained through discovery.

Parties may attempt to settle the case before trial and even before expert reports are submitted. Counsel may then ask the expert or a separate consultant team to provide a detailed empirical analysis of potential damages and other issues (materiality and loss causation in securities fraud class actions) that could facilitate settlement negotiations. It is important to first confirm that such work product is protected from discovery if the case proceeded to trial. If settlement negotiations are likely to proceed after expert reports have been exchanged, the expert report could be more detailed and designed to drive a resolution to the case. Conversely, if the case is almost certain to go to trial, some attorneys might prefer that less detail be included in the expert report to mitigate areas of attack, particularly at deposition, by opposing counsel.

Expert depositions. The next stage of expert discovery—after the report is submitted—consists of the experts’ depositions. We strongly recommend videotaping the opposing expert’s deposition. It is a very useful tactic at trial to contrast before the jury any inconsistent statements made by an expert witness at deposition with statements made by the expert at trial. In addition, all attorneys know that lengthy pauses do not show up on a deposition transcript, but such pauses can be painful, obvious, and harmful when caught on videotape. Regardless of whether the opposing expert falls apart or holds up, videotaping the opponent’s expert will better assist you with settlement valuation and trial preparation.

In preparing for the deposition of the opposing expert, leave no stone unturned. Never underestimate your opposing counsel or the proffered expert witness. Be prepared to thoroughly probe the opposing expert about all information that the expert considered and any pertinent information that may have been disregarded; expose any gaps in the expert’s curriculum vitae; search social media and other resources to uncover potential impeachment material; and challenge foundations and methodologies wherever possible.

With regard to your expert’s deposition, we mentioned in of the first article in this series that it is absolutely critical to thoroughly vet your expert witness before you retain the expert. In the present environment, that means extreme scrutiny of the expert witness’s curriculum vitae, as well as careful review of all publications, social media, and case research to make sure that your expert witness has not been successfully challenged but, equally important, to ensure that the expert witness does not have prior writing or testimony that contradicts the opinions in your case. A good lawyer will investigate and probe an expert witness on his or her background during the expert’s deposition. If you have thoroughly vetted your expert witness early, then the expert’s credentials will hold up during deposition or at trial. The fight then will be over the expert’s opinions, as it should be in litigation, and not about whether your expert witness is truly an expert.

To prepare for the expert witness’s deposition, counsel and the expert witness must both be thoroughly familiar with the expert’s report—the opinions expressed in the report as well as the facts and documents the expert relied on to reach these opinions. Counsel and the expert should be clear about the relevance of the report to the trier of fact given the claims and defenses that remain in the litigation and the main points counsel is trying to establish by relying on the expert’s report. Finally, counsel should conduct a mock deposition of the expert, which could be videotaped for later review. In that mock deposition, counsel should challenge each of the expert’s opinions, as well as the foundations for each opinion. Advance and repeat preparation is the key to successfully defending your expert’s deposition. If the expert cannot clearly explain his or her opinions and methodologies to you in preparation sessions, then the expert almost certainly will have difficulties doing so when crossed by opposing counsel at deposition or in front of the judge and jury at trial. 

Lawyers should reach out to opposing counsel and inquire whether the expert’s deposition will be videotaped. If your expert witness is not going to have a videotaped deposition, your expert can and should take additional time to carefully consider his or her response to each question and the phrasing of each answer. The lapse of time will not be reflected on the transcript or used against the expert witness.

Know the Applicable Challenge Methodology—Daubert or Other

From the start of litigation, an attorney must simultaneously consider both how to potentially challenge an opposing counsel’s expert witness and how to defend against anticipated challenges to his or her own expert witness. The first step in this process is to confirm whether the forum in which the case is pending follows the Daubert, Frye, or some other standard for the admissibility of expert evidence. The majority of states follow the Daubert standard, where the judge acts as the gatekeeper and determines evidence admissibility. Under Daubert, expert testimony must help the trier of fact understand the evidence or determine a fact in issue; the evidence must be based on sufficient facts or data and be the product of reliable principles and methods; and the expert must reliably apply the principles and methods to the facts of the case.

However, not all states follow the Daubert standard, and differences between expert standards can be highly material. Failure to adhere to the appropriate standard can result in an expert witness being struck or excluded, which obviously is devastating to a case. The best trial lawyers are aware of the applicable standard in the relevant forum, and they ensure that their expert witness is aware of and appreciates the applicable standard from engagement forward. Deposition preparation sessions with the expert witness should include lines of questioning that match the applicable standard for admissibility of expert evidence—thus reducing the likelihood of your expert walking into a trap.

Jeffrey D. Gardner and Jimmie Pursell Jr. are members of Jennings, Strouss & Salmon, PLC, and Sumon Mazumdar is vice president of Analysis Group and member of the finance faculty at Haas School of Business, University of California-Berkeley.

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).