Let Your Expert Take Center Stage and Perform!February 5, 2018 – Articles New Jersey Law Journal
Expert witnesses are unique because they are typically the only hearsay witness allowed to provide an opinion—and they can provide that opinion based upon information not even in evidence! Even great experts, however, often fail to persuade the trier of fact, and I am increasingly convinced that we should not dismissively attribute that failure to the expert having a bad day in court. Rather, as trial lawyers we need to set the stage for the expert to perform and effectively share their opinions. This article shares some observations on expert retention and preparing an expert witness to be convincing in court.
Be Prepared for the Worst: Retain an Expert Qualified to Testify in Federal Court
On paper, the location of your case, whether it is in federal or state court, would not appear to make much of a difference in expert selection. The rules defining who is qualified to serve as an expert, N.J.R.E. 702 and Fed. R. Evid. 702, appear on their face to be largely similar. Both the federal and state Rule 702 “sound” the same (is the proposed expert qualified, have adequate data or methodology, and would the testimony be of assistance to the trier of fact). In practice, however, federal district court judges are much tougher gatekeepers, blocking potential expert testimony unless it really passes muster.
First, they typically delve more deeply into questions such as whether the methodology can be tested, whether the technique has been subject to peer review and publication, the existence and maintenance of standards and controls, etc. Second, the standard for who qualifies as an expert is much more restrictive in federal court. If there is even the possibility that your case may be removed from state court to federal court (based perhaps on a Federal Question), get a highly qualified expert and make sure that their opinion satisfies Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993); Ashcroft v. Iqbal, 556 U.S. 662 (2009); Kumho Tire v. Carmichael, 526 U.S. 137 (1999); and Bell Atlantic v. Twombly, 550 U.S. 544 (2007). These cases are significant because the U.S. Supreme Court has required that federal district court judges be active gatekeepers, and, as such, the judges must really test the expert, the data the expert relies upon, and the expert’s methodology.
New Jersey state courts typically have a lower threshold for the admission of an expert’s testimony, and it appears that many judges err on the side of admitting borderline expert testimony. Once the expert is qualified based upon education or experience, expert opinion in New Jersey state court is typically permitted unless it is a net opinion, i.e., unquantified or based on unfounded speculation. An expert opinion in state court will not be permitted if it is a net opinion (an opinion lacking in foundation). To avoid being discarded as a net opinion, the expert must give some “whys and wherefores.” That said, the admission of expert testimony is largely left to the sound discretion of the trial court.
Make Your Expert Part of the Team
If you work with your expert and really make them part of the team, you will reap the benefit that they will be better prepared for cross-examination and to identify areas ripe for cross-examination of the opposing expert. One point of caution here—statements by your expert, especially if they are within the field of their expertise, are adoptive admissions and your adversary will use them against your cause.
Don’t Spoon Feed Your Expert
In determining how much of the record to provide your expert, consider adopting the “Goldilocks” approach. To put this in context, many trial lawyers are trained to spoon feed an expert, i.e., give them as little information as possible at the outset. If the expert really needs more, then you can provide them a little more information about the case later. The theory behind the spoon-feeding approach is to ensure that your expert does not inadvertently learn things that are not really within their subject area. This approach is myopic because if you give the expert only a view with blinders, they will look foolish when asked what their opinion is on a closely related document, which you have not shown them.
The alternative to spoon feeding is not to dump the kitchen sink of evidence upon the expert. Giving the expert everything is equally dangerous because it is often overwhelming and the expert may not be able to distinguish later between information they relied upon to form their opinion and information they received but never really studied. Use your professional judgment, of course, but I suggest providing the expert with what you think they need, but be a little generous. If there are areas of data and testimony that you are not inclined to share with the expert, you can have a discussion with the expert about what other data is available and explain why you are not providing that data to the expert. By building a working relationship with the expert, the expert witness can then answer truthfully that they had the information they needed and why they did not deem it necessary to consider other records or testimony.
Protecting Your Expert
The standard instructions most lawyers give their expert witness when appearing for a deposition or to testify in court is to bring nothing and simply be prepared. I have an unorthodox suggestion for all trial lawyers—work with your expert early on and pull together a binder of the core information that they believe supports their opinions and, perhaps, refutes your adversary’s expert. Vet the binder and cull any privileged information, create an index and have your expert bring it to their deposition. (You should bring copies for the opposing counsel, co-counsel, etc.) Unless there is an objection, there is nothing prohibiting your expert from using materials at the deposition if they will help him or her testify truthfully to your opponent’s questions. Many times, I’ve had my adversary mark the binder as Exhibit 1, which is ideal because now it can generally be introduced into evidence. The thought behind this approach is that your expert will feel more comfortable because he or she will have all the documents they want and in the order that they are comfortable seeing them. The most I’m giving away by this approach is that the documents in that binder reflect clearly some of the documents we think are most important to our client’s position. (Frankly, I respect most of my adversaries sufficiently that I believe that they probably know which documents are critical, so I’m not giving away much.)
Don’t Stretch Your Expert
As Clint Eastwood (Dirty Harry) opined in Magnum Force, “a man has got to know his limitations.” Make sure that your expert is prepared to be asked questions about areas that they did not opine upon but are within their expertise. An unprepared expert will engage in that discussion. A prepared expert may, if appropriate, simply advise that they have no opinion without further information and upon further deliberation.
In preparing your expert, practice both direct and cross examination so that they can anticipate some of the questions that they will encounter during voir dire and during cross examination. If possible, have a colleague who is not part of your trial team conduct a mock voir dire. It may be helpful to remind your expert that they are not a punching bag—if the cross-examiner is distorting the data or theory at issue, your expert should speak up and fight to defend their ground. Many experts are cowed by the admonition that they should answer only the question asked and are not advised that they need to defend their credibility and reputation.
Voir Dire Can Be Brutal
To protect your expert during voir dire, make sure that all of the elements that they need in evidence in order for them to support their opinion have been admitted. Most experts are qualified by virtue of knowledge or experience but many are shredded during voir dire because the expert was: (1) not properly prepared for voir dire; (2) not given the opportunity to engage in a fulsome investigation; or (3) simply lacked competent data to form an opinion, but took the opportunity to testify and assumed that being intelligent or trained made them a competent expert.
It can be confusing at times where voir dire ends and cross-examination begins because they are both typically gnawing away at the competency of the expert to testify or on the adequacy of the expert’s opinions. How far do you go in voir dire when attacking an opposing expert? As far as the situation dictates. Which is an admittedly ambiguous answer, but the short of it is that the court will typically let you know when it heard enough on voir dire.
Let Your Expert Teach
As soon as your expert passes voir dire, consider immediately asking for his or her opinions. You can also start posing hypothetical questions immediately, and if possible ask hypotheticals that sound a lot like your case. The jury has been waiting and waiting to hear from an expert. Start right out by asking for the expert’s opinion on a hypothetical. Trial is theater, and at the beginning of an expert’s testimony you typically have the jury’s rapt attention—after an hour of data and methodology, you will not.
Get your expert to use demonstratives and create exhibits. Too often after trial lawyers successfully proffer an expert witness and survive voir dire, the lawyer keeps talking and qualifying the witness. As a general rule, the trial lawyer needs to get out of the way and have the expert perform. Once accepted by the court as an expert, the expert needs to get out of the witness chair (after asking the court for permission) and take control of the courtroom. If your adversary’s demonstratives are in error, have your expert pull up the other side’s graphics and explain to the jury why the other side’s expert is wrong. The case may be really important to you and is likely even more important to the client, but the jury is going to lose interest unless they are educated and entertained. Have your expert become the teacher they wish they’d had in high school. This engaging style is not going to happen on its own—practice, practice, practice. You need to review the exhibits your expert will use and the points that they need to make. Generally, you want to get out of the way and make yourself small—like a conductor, you are leading the expert from point to point, but you’re letting the expert sing to the jury.
Reprinted with permission from the February 5 issue of the New Jersey Law Journal. (c) 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.