Rutter Guide Pres - Intro to Experts (Natalie).pptx

EXPERTS When, Why, & How to Incorporate Them into Your Case Rutter Guide, pages 218–251  Experts ≠ Expert Witnesses - An expert retained in a civil case can be a: - Consultant - Treating physician...

EXPERTS When, Why, & How to Incorporate Them into Your Case Rutter Guide, pages 218–251  Experts ≠ Expert Witnesses - An expert retained in a civil case can be a: - Consultant - Treating physician - Inspector - Testifying expert - Or more - An expert who will not testify at trial will be primarily referred to as a consultant or an expert consultant throughout this presentation [2:356–399] Why do we need experts?  Experts are needed for… - “...determination of an issue outside the common experience of the trier of fact.” - Experts provide missing links for the jury by explaining technical terminology and utilizing accurate and clear data presentation tools - Expert testimony is permissible when the subject matter is “sufficiently beyond common experience” that expert testimony would assist the trier of fact - Examples include: - Proving causation (the link between a breach of the duty of care and injuries) - Assessing the effect of certain variables, such as alcohol consumption [2:356–407]  Experts’ testimony is excluded when… - A matter is common knowledge or readily perceivable without expert testimony - Examples: whether a defect in the sidewalk was dangerous; loss of enjoyment of life; reasonableness of use of deadly force - Their testimony adds nothing - Q: Why would it be bad to have an expert testify in agreement with the other testimony, even though they have nothing new to add? - Their testimony requires commentary on issues that are within the province of the court - Examples: probable cause or distribution of fault [2:415–425] When do we need experts?  When deciding whether to hire an expert: - Ask yourself the following questions: - 1) What facts are available to establish the elements of what I am claiming? - 2) Could a lay jury of my peers decide this situation without drawing on specialized knowledge (or replacing that knowledge with their personal language and bias)? - 3) Are there any complex circumstances that would be better understood through data analysis or visual representations? [2:426–432]  When deciding when to hire an expert: - Sooner is often better - An expert can help you determine avenues of liability, determine what information is missing from your claim, and guide the discovery process - It is key to remember, however, that hiring an expert might actually hurt your client when liability is unclear or damages are insignificant - Hiring an Expert ≠ Designating an Expert Witness - An expert does not become an expert witness until designated; instead, they start out as a consultant on the case, which keeps their work confidential under work product protection (CCP § 2018.030(b); Williamson v. Super.Ct. (1978) 21 C3d 829, 148 CR 39) [2:440] How can we effectively utilize experts?  Factors to Consider When Selecting Experts: - You will need a blend of legal acumen and a fully empirical or treatment- based approach - If you hire a career expert, you risk getting a “gun for hire” who the jury will fail to find credible - If you hire someone who only treats/performs data analysis, you risk them testifying poorly: getting nervous, flustered, confused, or angry, or simply phrasing conclusions clumsily, potentially causing serious harm to your case - Check with other attorneys for reliability and history - JHQ and CAALA networks - Seminars - Co-counsel - Referring firms - Check databases like LexisNexis for testimony and side victory - Check court dockets for reputation and history [2:442–475]  How to Prepare to Interview Experts: - Prepare a simple outline of the major factors of the case, specifically those that will require their assessment and opinion - Have the supporting information and documentation available so that it can be provided when requested - Don’t get defensive about the facts: a poor assessment is an opportunity to grow and adjust, not an insult to our legal reasoning - Verify if they’re willing to testify: you need to make sure you have the same goals from the beginning of their involvement with the case [2:485–491]  Factors to Consider When Selecting Experts: - Consider the following when reviewing a potential expert: - Qualifications - Training & Knowledge - Field Experience vs. Trial Experience - Reputation and Credibility - Incl. Publications & Lectures - Communication Skills - Location - Fees for Consultation and Testimony [2:442–491] Expert Strategy Meetings  Preparing for the Strategy Meeting - Similar to the interview, but more in-depth. - Provide: - ALL case facts, whether they’re good for us or not - Documents to back up every fact, if possible - Demonstrative evidence, if necessary - The expert’s primary firm contact - A list of specific questions - Request: - A more in-depth and specific offering of the expert’s opinion - A schedule under which the expert will be able to complete the research and work needed [2:511–535]  Questions to Ask During the Strategy Meeting: - Does the expert feel that they have enough information to render an opinion at this time? If so, what is that opinion and what is the factual basis for it? - If the expert does not have enough information to support an accurate opinion, what further information is needed? - What are the noticeable weaknesses in the case, and how might they be addressed? - What specific information could be obtained through discovery to help the expert record? - What material they might need from the court or other restricted locations(e.g. What journal articles) - What is the best theory on which to build the client’s position? (e.g., whether something is hazardous only under some circumstances, or all the time and to all people) [2:511–535]  Communicate Regularly: - Speak with your expert often regarding the case, especially as to those facts which most concern their eventually conclusions - This will prevent both of you from getting blindsided by a changing opinion or a new and challenging case fact - Provide updates whenever available, including electronic copies or written discovery, BUT: know that all of an expert’s file becomes discoverable in when they are designated as an expert witness [2:535] Principles for Communicating with Opposing Experts Protections for Experts - Consultants and physicians are generally protected from contact from the opposing side by attorney work product privilege - Anyone who uncovers information from them without the other attorney’s express consent has unethically accessed privileged information and must recuse themselves from the case - True even for “prospective” expert - Treating physicians are also protected by physician-patient privilege - The exception is by the statutory routes of discovery, such as by a noticed deposition and subpoena for appearance Questions?