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Working With Experts (Newbie Litigator School 2020)

Expert witnesses are an integral part of modern commercial litigation. They can be used for everything from calculating damages to explaining software workflows to establishing industry standards. This webinar begins with an exploration of the common types of cases that call for use of expert testimony. From there, we discuss the rules governing experts, including expert disclosures, discovery, and expert depositions. We also discuss the Daubert standard for excluding expert testimony, and discuss how a successful Daubert motion may be brought. This hour will help you figure out when and how to hire your own expert, and will give you some ideas on how to challenge your opponent’s expert when the time comes.

To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/working-with-experts-2020/

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Working With Experts (Newbie Litigator School 2020)

  1. 1. 1
  2. 2. 2 Practical and entertaining education for attorneys, accountants, business owners and executives, and investors.
  3. 3. 3 Thank You To Our Sponsor
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  5. 5. Disclaimer The material in this webinar is for informational purposes only. It should not be considered legal, financial or other professional advice. You should consult with an attorney or other appropriate professional to determine what may be best for your individual needs. While Financial Poise™ takes reasonable steps to ensure that information it publishes is accurate, Financial Poise™ makes no guaranty in this regard. 5
  6. 6. Meet the Faculty MODERATOR: Adam Hirsch - Roetzel & Andress PANELISTS: Max Stein - Boodell & Domanskis, LLC Rob Michaels - Environmental Law & Policy Center Matthew Christensen - Angstman Johnson 6
  7. 7. About This Webinar – Working With Experts Expert witnesses are an integral part of modern litigation. They can be used for everything from calculating damages to explaining software workflows to establishing industry standards. This webinar begins with an exploration of the common types of cases that call for use of expert testimony. From there, we discuss the rules governing experts, including expert disclosures, discovery, and expert depositions. We also discuss the Daubert standard for excluding expert testimony, and discuss how a successful Daubert motion may be brought. This hour will help you figure out when and how to hire your own expert, and will give you some ideas on how to challenge your opponent’s expert when the time comes. 7
  8. 8. About This Series – Newbie Litigator School – Fall 2020 Edition Has it been a couple of (or more) years since you took Civil Procedure in law school? Or perhaps you a business owner who has been sued repeatedly and you want to learn a bit about how the sausage is made. This series is one of several series (together with the “Newbie Litigator School” Parts 2 and 3) that Financial Poise designed specifically for attorneys who could use a broad-brush yet pithy refresher about civil litigation fundamentals, with some real world color added in. The purpose is to introduce different components and phases of litigation, from the basic rules of civil procedure and evidence, to dispositive motions, through trial, and on to appeal and post-judgment collection work. Each Financial Poise Webinar is delivered in Plain English, understandable to investors, business owners, and executives without much background in these areas, yet is of primary value to attorneys, accountants, and other seasoned professionals. Each episode brings you into engaging, sometimes humorous, conversations designed to entertain as it teaches. Each episode in the series is designed to be viewed independently of the other episodes so that participants will enhance their knowledge of this area whether they attend one, some, or all episodes. 8
  9. 9. Episodes in this Series #1: The Federal Rules of Civil Procedure Premiere date:10/8/20 #2: Discovery Practice Premiere date: 10/28/20 #3: Dispositive Motions Premiere date: 11/18/20 #4: Working With Experts Premiere date: 12/16/20 9
  10. 10. Episode #4 Working With Experts 10
  11. 11. Who is an Expert Witness? • An expert witness is a witness allowed by the court to testify as to his or her opinion, based on his or her special knowledge or proficiency in a particular field of study. An expert witness who testifies at trial is commonly referred to as a “Testifying Expert.” • Non-expert witnesses may testify only as to facts, or on rare occasions, what are known as “lay opinions.” 11
  12. 12. What is a Consulting Expert? • Not all expert witnesses are retained to testify at trial. Some experts are hired to assist lawyers in understanding documents or to formulate lines of inquiry. Experts who are not called as witnesses are called “consulting experts.” 12
  13. 13. Fed R. Civ. P. 26(a)2(A) • Federal Rule of Civil Procedure 26(a)(2)(A) governs the “Disclosure of Expert Testimony:” (2) Disclosure of Expert Testimony. (A) [] [A] party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. • Do not plan on springing a surprise expert witness at trial. 13
  14. 14. The Expert Report • The Federal Rules of Civil Procedure, as well as many (but not all) state rules, require that Testifying Experts produce to the other side, in advance, a written report summarizing their opinions. The Federal Rules prescribe two different types of reports, one under Fed. R. Civ. P. 26(a)(2)(B), and one under Fed. R. Civ. P. 26(a)(2)(C). 14
  15. 15. Fed R. Civ. P. 26(a)2(B) • Fed. R. Civ. P. 26(a)(2)(B) provides: (B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report— prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. 15
  16. 16. Fed R. Civ. P. 26(a)2(C) • Fed. R. Civ. P. 26(a)(2)(C) provides:  Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state: (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify. 16
  17. 17. What is the Difference Between a Rule 26(a)(2)(B) Expert Witness and a Rule 26(a)(2)(C) Expert Witness? • Per a recent amendment to Rule 26, a 26(a)(2)(B) witness is one hired for the purposes of the litigation. A Rule 26(a)(2)(C) witness is a testifying expert that will also provide fact testimony. The most common example is a plaintiff’s long-time doctor, who will testify about the plaintiff’s medical condition and offer a medical opinion as well. • The reporting standards for 26(a)(2)(C) witnesses are less stringent than for 26(a)(2)(B) witnesses. 17
  18. 18. A Fed. R. Civ. P. 26(a)(2)(B) Expert Report Must Contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. 18
  19. 19. The Expert Report • Rule 26(a)(2)(B)(i) lays out the most important part of any expert report:  “A complete statement of all opinions the witness will express and the basis and reasons for them.” o For the litigator, the question might be phrased this way: o On which point (or topic) do you want your expert to provide an opinion? 19
  20. 20. When do Parties Need Expert Opinions? • In some cases, an expert opinion may be required, like a personal injury case where medical testimony is required on the nature of the plaintiff’s injuries, or one where the plaintiff has alleged professional negligence against a doctor or lawyer. • In other cases, an expert opinion may be sought as a trial tactic, or because the subject matter of the litigation is technical. Put differently, in some cases an expert witness will be used because the lawyer wants the jury to hear certain testimony from an expert. In other cases, an expert witness is required to explain an issue that fact witnesses cannot. 20
  21. 21. Preparation of the Expert Report • Preparing an expert report is the first major task for a testifying expert. Some issues to consider:  Do you want your expert to review your entire file or just selected documents? What do you want your expert’s opinions to be based on? What must they see?  Should Expert A know what Expert B is up to, or should their work be kept separate?  How heavy is your editing hand? There may be a trade-off between efficacy of the report and having your witness sound more like a lawyer and less like himself. 21
  22. 22. Expert Report: Discovery Issues • Under the current federal rules, drafts of expert reports are no longer discoverable. See Fed. R. Civ. P. 26(b)(3)(A) and (B). State rules are likely to vary, so be sure to check and double check the rules as to the discoverability of draft reports and your communications with your expert. If the lawyer’s communications with his expert witness are discoverable, be prepared to spend a lot of time on the phone. 22
  23. 23. Expert Deposition: Preparing Your Witness • Preparing your expert witness for deposition is not a task that should be short-changed. In budgeting expert costs and attorney time, allow for substantial preparation, over multiple sessions. Your witness should be prepared for intense cross-examination, but not scripted. • For witnesses relatively new to litigation, preparation should include a plan for process questions. What did the expert review? What did she not? Who did she talk to? Why or why not? Witnesses comfortable in their field of study may need extra attention paid to the idiosyncrasies of litigation. 23
  24. 24. Taking an Expert Deposition • Taking an expert deposition also requires substantial preparation. Some things to consider:  Consult your own expert in drafting questions and lines of inquiry.  Consider whether you plan to challenge the witnesses’ qualifications. Skipping qualification questions (or stipulating to qualifications) for obviously qualified witnesses allows more time for questions on other topics.  Consider saving certain questions for cross-examination at trial. Unless you are setting up a clean motion to exclude, catching an expert by surprise at trial may be preferable to telegraphing a particular line of attack. 24
  25. 25. Taking an Expert Deposition • There are advantages to be gained by videotaping your deposition of the other side’s expert. Video will reveal the expert’s trial demeanor and how they are likely to present to a jury. Pauses that are not reflected in a transcript will appear on video and can damage the expert’s credibility. An effective video deposition may cause the other side to reconsider whether the expert testifies at trial. 25
  26. 26. Rebuttal Reports • Most rules and schedules allow for rebuttal expert reports. A rebuttal report allows your expert to respond directly to the other side’s expert opinions. It is also a good opportunity to clean up any errors that may have come to light in your expert’s deposition. Correcting errors in your expert’s report can be tricky: the goal is to bolster credibility by admitting mistakes without damaging the overall conclusions reached. 26
  27. 27. Expert Motion Practice • Motions to exclude expert testimony are governed by Federal Rules of Evidence 702 and 703. Rule 702 provides:  A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. 27
  28. 28. FRE 703 Provides: • An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. 28
  29. 29. FRE 702 and 703 and Daubert Motions • Because FRE 702 and 703 were interpreted in the 1993 Supreme Court ruling Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), motions to exclude experts are often referred to as “Daubert” motions. • You may also see reference to Kumho Tire v. Carmichael, 526 U.S. 137, a 1999 Supreme Court decision that extended Daubert to all forms of expert testimony. 29
  30. 30. Daubert and Kumho Tire • Daubert and Kumho Tire invite trial judges to be “gatekeepers” of expert testimony before that testimony may be presented to a jury:  “In [Daubert], this Court focused upon the admissibility of scientific expert testimony. It pointed out that such testimony is admissible only if it is both relevant and reliable. And it held that the Federal Rules of Evidence "assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.“ • Kumho Tire, 526 U.S. at 141. 30
  31. 31. The Nonexclusive Kumho Tire Factors: • Whether a theory or technique ... can be (and has been) tested; • Whether it has been subjected to peer review and publication; • Whether, in respect to a particular technique, there is a high known or potential rate of error and whether there are "standards controlling the technique's operation; and • Whether the theory or technique enjoys general acceptance within a relevant scientific community. • Kumho Tire, 526 U.S. at 149-150. These factors are used by courts to determine whether to bar an expert witness from trial. 31
  32. 32. Expert Motion Practice • Tactical considerations  Not every expert deserves a Daubert motion. If your opponent has hitched his case to an expert report based on a shoddy methodology, consider saving your attack for the expert witness’ cross-examination, when it will be too late for the other side to adjust. A Daubert motion forces the judge to make a ruling based on flexible and nonexclusive factors, so clean wins are tough to get. Also, if your Daubert motion previews your cross-examination and you lose, the motion the expert will be able to account for your critique in his direct examination at trial. 32
  33. 33. About the Faculty 33
  34. 34. About The Faculty Adam Hirsch - AHirsch@ralaw.com Mr. Hirsch focuses his practice on commercial and business litigation, representing a wide variety of clients ranging from individuals to small business owners to large corporations. He has a particular focus on investment disputes and business fraud claims, and has represented investors and investment companies as plaintiffs and defendants in lawsuits around the country. Mr. Hirsch regularly writes and presents on current issues relating to business fraud. He also has extensive experience litigating contract disputes, and has argued and tried multi-million dollar contract issues before judges and juries nationwide. Mr. Hirsch also has experience in advising clients in employment disputes relating to matters such as separation, severance, non-solicitation, and non-compete agreements. 34
  35. 35. About The Faculty Max Stein - mstein@boodlaw.com Max Stein, a member of Boodell & Domanskis, LLC, is a business litigator focused on meeting clients’ business objectives, helping them resolve disputes at the most opportune times. Max represents clients as both plaintiffs and defendants in a wide variety of forums. Additionally, Max notes that one advantage of practicing at a smaller firm, is that he is able to offer his clients high-quality, nimble representation at reasonable rates. To aid his clients in achieving their business objectives, Max approaches cases as though they will go to trial, utilizing his extensive trial experience. Max also counsels his clients, helping to identify and navigate legal risks to achieve their business goals and protect their competitive interests while managing and, where possible, avoiding the expense and uncertainty of litigation. 35
  36. 36. About The Faculty Matthew Christensen - mtc@angstman.com Matt Christensen joined Angstman Johnson in 2008 as an associate attorney. Now a member of the firm, Matt has a civil litigation practice involving commercial law (finance and secured transactions), bankruptcy, real property, and business matters. He also has a transactional practice involving real estate, finance and business matters, including franchising. Matt frequently represents bankruptcy trustees and other fiduciaries in recovering assets and administering estates. Prior to joining the firm, Matt was a Junior Partner at a Meridian, Idaho, law firm and also established a solo practice. In addition to practicing law, Matt is an adjunct professor at the University of Idaho College of Law where he teaches international trade/business, real estate transactions and law practice management courses. To read more, go to https://www.financialpoise.com/financialpoisewebinars/faculty/matthew- christensen/ 36
  37. 37. About The Faculty Rob Michaels - rmichaels@elpc.org Rob Michaels is a Senior Attorney working to protect clean water, wildlife, biodiversity and forests in the Midwest. Mr. Michaels is an experienced plaintiffs-side litigation attorney with 30 years of federal court complex litigation experience as a Partner at the Robertson, Curley & Clayton law firm and the Goldstein & McClintock law firm. He previously was a Staff Attorney and Project Director at the Environmental Law & Policy Center; University of Chicago Law School Bigelow Fellow; and Associate at the Mayer Brown & Platt law firm following a federal court clerkship with Judge Robert Hall (N.D. Ga.). 37
  38. 38. Questions or Comments? If you have any questions about this webinar that you did not get to ask during the live premiere, or if you are watching this webinar On Demand, please do not hesitate to email us at info@financialpoise.com with any questions or comments you may have. Please include the name of the webinar in your email and we will do our best to provide a timely response. IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education. 38
  39. 39. About Financial Poise 39 Financial Poise™ has one mission: to provide reliable plain English business, financial, and legal education to individual investors, entrepreneurs, business owners and executives. Visit us at www.financialpoise.com Our free weekly newsletter, Financial Poise Weekly, updates you on new articles published on our website and Upcoming Webinars you may be interested in. To join our email list, please visit: https://www.financialpoise.com/subscribe/

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