Working With Experts (Newbie Litigator School)

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Practical and entertaining education for
attorneys, accountants, business owners
and executives, and investors.
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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 the information
it publishes is accurate, Financial Poise™ makes no guaranty in this regard.
About this PowerPoint: if you are looking at this PowerPoint without the benefit of
listening to the conversation that surrounded it then you are doing yourself a disservice.
This PowerPoint was prepared in contemplation of being viewed in conjunction with
listening to a one hour webinar on the topic
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MEET THE FACULTY
Moderator:
Mitch Bryan – Williams, Bax & Saltzman, P.C.
Panelists:
Damian Capozzola – The Law Offices of Damian D. Capozzola
Matthew Christensen – Angstman Johnson
John Levitske – Ankura
Michael Pakter – Gould & Pakter & Associates
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ABOUT THIS WEBINAR:
Working With Experts
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.
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ABOUT THIS SERIES:
Newbie Litigator School
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.
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EPISODES IN THIS SERIES
1/23/19 Episode #1:
The Federal Rules of Civil Procedure
2/27/19 Episode #2:
Discovery Practice
3/27/19 Episode #3:
Dispositive Motions
4/24/19 Episode #4:
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Dates shown are premiere dates.
All webinars will be available
On Demand approximately 4 weeks
after they premiere.

Episode #4:
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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.
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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.”
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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.
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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).
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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.
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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:
o (i) the subject matter on which the witness is expected to present evidence
under Federal Rule of Evidence 702, 703, or 705; and
o (ii) a summary of the facts and opinions to which the witness is expected
to testify.
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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.
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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.
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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?
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WHEN DO PARTIES NEED EXPERT
OPINIONS?
• In some cases, an expert opinion may be required, like a personal injury case 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.
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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 a selected subset?
What do you want your expert’s opinions to be based on?
✓ 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.
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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.
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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.
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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 criticism.
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TAKING AN EXPERT DEPOSITION
(con’t)
• 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.
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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.
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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.
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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.
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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.
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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.
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TRIAL COURTS ARE TO APPLY A SET OF
NONEXCLUSIVE FACTORS IN DECIDING
WHETHER TO BAR EXPERT TESTIMONY:
• 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.
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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.
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ABOUT THE FACULTY
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Mitch Bryan – Bryan@wbs-law.com
Mitchell Bryan is a partner in the Chicago law firm of Williams, Bax & Saltzman, P.C. Mitch acts as
litigation and general counsel to a wide variety of corporate, LLC, partnership and high net worth
individual clients, and as an advisor and trial counsel to trustees, corporate board members, board
committees, and other for-profit and nonprofit corporate fiduciaries. Mitch has over 35 years of extensive
trial, appellate and litigation management experience in state and federal courts in several states, and in
private arbitration, covering a broad range of complex commercial, insurance, real estate, IP, corporate
governance, fiduciary, regulatory, professional liability, financial industry and tax disputes.
Mitch is a graduate of the Washington University School of Law (St. Louis) and earned his bachelor’s
degree at the University of Illinois at Champaign-Urbana. He is a member of the Litigation and Business
law Sections of the American Bar Association, and the Insurance and Trust Law Committees of the
Chicago Bar Association. Mitch has been included among attorneys named as Illinois Super Lawyers, and
is a member of the Illinois Leading Lawyers Network Advisory Board.
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Damian Capozzola – ddc@ddclaw.com
The Law Offices of Damian D. Capozzola, Los Angeles, CA, August 2013-present
Representing large and small businesses, cities, and individuals in commercial, employment, tort, and health
care matters.
Crowell & Moring LLP, Los Angeles, CA, May 2011 – August 2013
Commercial, health care, and employment matters: Supervising discovery and leading presentations of
evidence and argument in court trials and arbitrations, and providing associated advice.
Epstein, Becker & Green, P.C., Century City, CA, April 2007 – May 2011
Commercial, employment, and health care litigation: Supervising discovery and
leading presentations of evidence and argument in court trials and arbitrations. Kirkland & Ellis, LLP, Los
Angeles, CA, September 1996 – March 2007
Commercial litigation: Diverse practice covering all phases of litigation in contract, tort, bankruptcy,
environmental, employment, and criminal matters. Elected to partnership November 1, 2002.
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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/
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John Levitske – John.Levitske@ankura.com
John Levitske is a Senior Managing Director at Ankura, focused on business valuation and complex financial
disputes. He has served as a senior advisor to companies, owners, executives, and legal counsel in business
disputes, shareholder disputes, and M&A transactions regarding issues of valuation, finance, damages, and
accounting. John is based in Chicago.
With more than two decades of Big Four public accounting and international consulting experience, John is
seasoned in business valuation, financial analysis, economic damage quantification, forensic accounting,
retrospective solvency analysis, and post-merger & acquisition accounting calculations. He handles appraisals
of healthy and distressed companies for buyouts of shareholders and creditors, transaction planning, estate
and gift taxation, financial accounting, bankruptcy proceedings, and litigation disputes.
John has provided consulting and expert witness testimony services and has served as a neutral party in
arbitration and mediation. He has testified as an expert witness in the US and Europe in depositions, hearings,
bench and jury court trials, and domestic and international arbitration (ICC, SCC, AAA, JAMS, FINRA, and ad
hoc arbitrations) and has served as a neutral arbitrator. In addition, he has rendered binding decisions on
disputed matters.
To read more, go to https://www.financialpoise.com/financialpoisewebinars/faculty/john-levitske/
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Michael Pakter – mpakter@litcpa.com
Mr. Pakter focuses his professional practice on forensic accounting, economic damages, financial analyses,
distressed businesses, fraud/financial investigations, business valuation, business economics and litigation
support services. He has provided expert services in matters involving accounting, lost profits/earnings,
business interruption, breach of contract, audit failure, analysis of financial transactions/balances, alter ego,
bankruptcy, fraud, accounting books and records and the reconstruction of incomplete, misstated and/or
falsified financial information. Mr. Pakter provides consulting and dispute avoidance/resolution services to
trial lawyers, trustees, examiners, receivers, business owners and managers and units of federal, state and local
government. Many engagements combine complex financial analysis, economic damages, valuation and
distressed business issues, often involving applying many professional disciplines to assist in resolving complex
commercial litigation and business disputes. Mr. Pakter has 40 years of experience in accounting and forensic
accounting, business economics and investigations in numerous industries and diverse engagements, including
more than 20 years of experience in economic damages and business valuations. State, Federal and Bankruptcy
Courts, as well as arbitrators, have recognized him as an expert in accounting, forensic accounting, economic
damages, financial analysis, business valuation and business economics. He has served as a Rule 213(f)3 expert
witness, a Rule 30(b)(6) witness and a Rule 1006 witness.
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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.
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ABOUT FINANCIAL POISE
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