Remember the 1990 movie Presumed Innocent? Harrison Ford plays Rusty Sabich, a deputy prosecutor charged with the brutal murder of his co-worker. The prosecuting attorney believes Sabich had an affair with the victim; then killed her after staging the crime as a rape/murder by one of the sex criminals she had previously prosecuted.
During the murder trial of Sabich, the prosecution calls a forensic expert, Dr. “Painless” Kumagai, to the witness stand. The doctor failed to thoroughly review his autopsy report before testifying and could not explain a puzzling inconsistency: why the victim would use a spermicide when her tubes were tied and she was unable to have children. Defense counsel demolishes the doctor’s credibility, setting the stage for a victory for the defense.
The movie, while fiction, illustrates the difference an expert can make. Some cases demand expert testimony and a great expert can be critical to winning. A bad expert can harm the case or even sink it. When you retain an expert for your case, be on the lookout for two recurrent problems:
- The witness provides testimony that is useless either because it is excluded by the court or is unbelievable due to:
a. The witness venturing into an area beyond his realm of expertise,
b. The witness assuming facts that are inconsistent with the evidence, or
c. The witness relying upon insufficient or unreliable supporting data.
The witness charges high fees out of proportion to the value he adds to the case or that the client cannot afford.
Much like a cowboy herding cattle, the lawyer needs to provide guidance to his retained expert witness. Whether the retained expert specializes in accident reconstruction, engineering, or medicine, you can effectively manage experts with a few simple strategies. The following suggestions will help contain high fees and reduce the possibility of a court excluding testimony from your expert. Obviously, all must be done within the ethical guidelines of your particular jurisdiction.
Have a very specific employment contract. State clearly what the expert needs to do, so there is no confusion. For example, if a physician needs to review the depositions of all fact witnesses before she forms her opinion, put this in writing. State when certain tasks need to be performed. If the physician needs to review the depositions and provide an opinion within six weeks of employment, set the time frame out clearly in the contract.
Make certain the expert is clear on what he should not be doing. For example, a real estate appraiser typically lacks expertise in environmental problems. He should not be allowed to opine on the extent of environmental contamination (or costs of remediation), unless he relies upon the expertise of someone in the environmental field. To allow an expert to tackle a subject outside his training, education, and expertise subjects him to a possible Daubert challenge. Even a brief foray outside the territory of his expertise leaves him open to attack.
Have someone on your staff (such as a legal assistant or investigator) do as much of the leg work for the expert as ethically possible. If someone in your office can locate documents or make exhibits for the expert, this will cut down on the expert’s time and expenses. The expert’s time is your client’s money.
Insure the expert has all the data he needs to form a well-grounded opinion. Make certain he has all the documents, depositions, photographs, maps, charts, medical records, laboratory analysis, etc. that you consider crucial for his review. He should not be expected to gather all the pertinent facts on his own – he may be too busy to do so, may not know the evidence as well as you do, and may not be aware of all the evidence.
Be certain to provide adverse evidence to your expert, as well as the evidence that supports your position. The expert’s opinion won’t count for much on the witness stand if opposing counsel points out critical data he failed to consider because he was unaware of it. How embarrassing if your expert creates a half-baked analysis because he didn’t consider the entire universe of facts in the case.
If possible, have the expert talk with you before finalizing his opinion. This isn’t for the purpose of manipulating his conclusion. It should be done to discuss the scope of the work he performed, the data he reviewed, and the basis of his opinion. You want to insure he reaches a conclusion that is consistent with the evidence and has sufficient supporting data.
Experts are expensive. Really good experts are usually really expensive. To keep costs contained, put a clause in the employment contract that stair-steps payments to the expert depending upon the work performed. For example, the attorney might include a clause limiting an archeologist to a total fee of $3,000 for initial document review and consultation. The contract should state that the archeologist may only exceed $3,000 with written permission from you. Upon obtaining permission, the archeologist would be authorized to bill up to an additional $3,000 and so on. This provides some control over costs and may keep things more affordable for the client.
Make certain the expert is in the loop on dates and deadlines. Have your assistant keep him abreast of deadlines for submitting his report, of depositions you may want him to attend, and of the trial setting. Gentle reminders will help keep him focused on the case.
Increase your expert’s comfort level by insuring he is familiar with the courthouse, where to park, courtroom procedures, etc. Even an old hand who has testified frequently may still require some guidance from you and may appreciate knowing a bit about the judge and opposing counsel. Experts who are novices at testifying will feel much more comfortable after an overview of how trials proceed, some basics of the rules of evidence, and what to expect when they are called to testify.
All experts, no matter what their field of expertise, seem to have one thing in common – they wait to the last minute to do their work. Prevent this from happening by requesting monthly phone or email progress updates from the expert. Meet or speak with him on a regular basis to make certain he is on track. Speak to your witness early and often to keep him focused on the case. Too busy yourself to keep the expert on track? Then delegate the task to your legal assistant.
Working with retained experts can be fun. You learn from a master in a particular field. His assistance can help you formulate a theory of the case, prepare for cross-examination of the other side’s expert, and educate the jury. By applying these ten pointers, your path to success with the expert will be easier.
In real life, as in the movies, experts can be your key to winning the lawsuit. In the movie, My Cousin Vinny, Brooklyn lawyer Vincent LaGuardia “Vinny” Gambini learned this during his first trial – defending his young cousin and a friend who are arrested for capital murder after a stop at the Sac-O-Suds convenience store in rural Alabama. Vinny calls his out-of-work hairdresser girlfriend (Mona Lisa Vito) to the witness stand as an expert on general automotive knowledge. She demolishes the prosecution’s expert testimony (provided by an automotive instructor of forensic studies for the Federal Bureau of Investigation) by explaining how the defendant’s car could not have possibly made the tire tracks left by the killer’s car.
Vinny recalls the FBI instructor to the witness stand and he is forced to agree with Ms. Vito’s opinion. In light of Ms. Vito’s testimony and the opposing expert’s capitulation, the District Attorney dismisses the murder charges. By effectively working with your witness, just possibly his testimony will go so superbly that you will end the direct exam the way Vinny did Ms. Vito’s testimony: “Thank you VERY, VERY much. You’ve been a lovely, lovely witness.”