Expert Witness Voir Dire

How important is expert witness voir dire? Not everyone agrees on this question. In some cases, attorneys waive the voir dire process. However, in certain circumstances, it can be an important opportunity to either qualify your witness or, if you can't disqualify an opposing expert, to at least shed some doubt as to his credibility.

The jury develops its first impression of the expert during the voir dire process. As such, you should prepare your expert as to what questions to expect. Focusing solely on the expert's qualifications as outlined on his CV can prove problematic. To survive voir dire, the expert must also demonstrate why he is qualified to testify as to the subject matter involved in the case.

Forensic magazine published a sample voir dire questionnaire that you may find helpful in preparing your expert (and yourself) for your next voir dire. The Georgia Association of Criminal Defense Lawyers has shared a similar outline, which you can find here.  If you don't already have a voir dire outline, you may find these useful as a starting point. Both of these outlines cover the Daubert basics and the requisite information that must be established to either qualify or disqualify an expert.

Remember if you are cross-examining the expert, you may not be able to disqualify him, but you may succeed in shedding serious doubt regarding his reliability and relevance to the case. On the other hand, if you prepare your expert for voir dire effectively, he will leave a lasting and positive impression on the jury.

Have You Done Your Expert Witness Due Diligence?

What steps do you take to investigate a potential expert you are considering hiring for a case? Just as important, how much research do you conduct regarding the opposing expert? Failing to exercise due diligence in selecting an expert or researching an opposing expert can make or break your case as this article illustrates.

So, what exactly does due diligence entail with regard to expert witnesses? A good starting point is to verify the expert’s credentials, a relatively easy step that many lawyers neglect. Be thorough – verify not only degrees, licenses and certifications, but also publishing and speaking/presenting claims and memberships in professional associations. Is the expert up-to-date with any and all continuing education requirements or is the expert currently suspended (or has been in the past) from the practice of his profession?

Next, you will want to review previous testimony (deposition and/or trial) under oath, reports submitted in other cases, and the transcript from any Daubert challenges involving the expert. You may also want to conduct a general internet search to uncover any news about the expert or any social media sources the expert may contribute to, including twitter or a personal or professional blog.

Don’t forget word of mouth. Talk to other lawyers or anyone else who has had prior dealings with the expert. What due diligence did they perform that might help you?

As you can imagine, conducting adequate due diligence on an expert can prove to be both timely and costly. As a result, many attorneys skimp on due diligence or fail to conduct it at alltogether, to their detriment.

Help is only a phone call away. As part of our services, Thomson Reuters Expert Witness Services (TREWS) offers Expert Intelligence Reports, providing you with the essential background information for your expert. Additionally, TREWS has access to DRI’s expert witness database, an added benefit for DRI members. 

In this day, expert witness due diligence is a necessity, not a luxury. Conducting due diligence on an expert may help you win a case or keep you from losing one.

The Supreme Court Tackles Issue of Whether High Expert Costs Effectively Bar Access to Courts

Experts are expensive. But is the cost of an expert so expensive that it effectively bars a plaintiff’s access to court if he cannot afford to pay the expert? This exact issue was recently a subject of intense debate before the highest court in the country in American Express Company, et al. v. Italian Colors Restaurant, et al. (argued before the Supreme Court on February 27, 2013).

By way of brief background, the case  came before the Supreme Court on appeal from the Second Circuit. On its face, the case revolves around the issue of the enforceability (or lack thereof) of class action waivers in arbitration agreements. Plaintiffs (business merchants) sought to bring an antitrust action against American Express under the Sherman Act. Citing binding arbitration agreements, American Express sought to enforce mandatory class action waivers which would prevent the plaintiffs from pursuing a class action and, instead, force plaintiffs to pursue individual claims at arbitration.

So, where do experts fit into this? The Second Circuit, upon denying American Express’s motion to compel arbitration, ruled that it would be “financially impossible” for plaintiffs to “vindicate their federal statutory rights” if they could not pursue their claims as a class action. Why? Largely because of the cost of the expert(s) needed to prove economic damages in such a case, which the Second Circuit estimated could cost several hundred thousand dollars, possibly exceeding $1 million.

During oral argument, the justices posed some very provoking questions:

JUSTICE GINSBURG: Mr. Kellogg, suppose it goes to arbitration as you think it should, and the arbitrator says to the merchant, to prove your case, you have to show the relevant market, you have to show that American Express had market power, that it used that power to the detriment of its competitors, and the way the way these tying cases have gone is you get an expert. And I don't see that you can prove it in -- in a new way. I mean, the whole point of this is that the expense to win one of these cases is enormous. And no single person is not worth that person's while.

***

JUSTICE KAGAN: Mr. Kellogg, do you think that if in your arbitration agreement you had a clause which just said, I hereby agree not to bring any Sherman Act claim against American Express, could -- could your arbitration agreement do that?

MR. KELLOGG: Under this Court's decision in Mitsubishi, I believe not.

JUSTICE KAGAN: It -- it couldn't, right because we would say no, there has to be an -- an opportunity for a vindication of statutory rights, is that right?

MR. KELLOGG: Correct.

JUSTICE KAGAN: And -- and suppose that the arbitration clause said something different. Suppose that the arbitration clause said, I -- I hereby agree that I will not present any economic evidence in an antitrust action against American Express. Could it do that?

MR. KELLOGG: I think that would be subject to review under State unconscionability principles, and would probably be struck down, Your Honor, just like any other provision that essentially prevents –

JUSTICE KAGAN: Well, even putting aside State unconscionability principles, wouldn't you think that our Mitsubishi case and our Randolph case would again come in and say, my gosh, this arbitration clause prevents any effective vindication of the rights to bring an antitrust suit.

Other justices, including Justice Scalia and arguably Justice Breyer seemed to have less of an issue with the prospect of high expert costs.

JUSTICE SCALIA: I guess you could have said the same thing under the Sherman Act before Rule 23 existed, right?

MR. KELLOGG: You could have.

JUSTICE SCALIA: Before there was such as thing as class actions.  . . The same thing would have been true. If, indeed, your claim was so small that you can't claim -- can't pay an expert, you, as a practical matter, don't bring the suit.

It’s unclear how the Court will rule in this case. What do you think? Is the high cost of an expert reasonable grounds to deem a class action waiver unenforceable?

Effective Cross-Examination: Neutralizing an Expert Who Has Relied Solely Upon Counsel for Information

Many times experts rely solely upon information provided by counsel in forming their expert opinion. But is there a danger in this practice? Should an expert conduct his own independent research or investigation?  And if an expert has not conducted his own independent investigation, what effect, if any, would it have on his testimony?

If you’ve never thought about this issue before, you may want to check out this video from TrialLawyerExpert.tv. In it, a lawyer discusses how he effectively “neutralized” the opposing expert during cross examination by focusing on the source of facts and information the expert relied upon in forming his opinion, which came solely from opposing counsel. Not only did he neutralize the opposing expert, one could argue that ultimately the expert agreed with his theory of the case.

This could prove to be a very effective strategy for cross-examination and a pitfall for many experts.

Same-specialty Expert Witness Requirement in Medical Malpractice Cases

Must an expert in a medical malpractice case share the same specialty as the treating physician? It depends on what state your case is pending.

The Supreme Court of Arizona recently upheld a law mandating that experts in medical malpractice cases must come from the same specialty as the defendant/treating physician. Florida is contemplating the same restriction on expert witness testimony in medical liability cases. A bill which would also require that experts share the same specialty as the defendant was recently approved by the Senate Judiciary Committee. A similar law is on the books in Maryland; however, there has been some confusion as to the effect of this law as a result of arguably ambiguous language.

Proponents of this law argue that such a requirement does not bar plaintiffs from filing medical malpractice suits or obtaining a recovery, and it provides more guidance and certainty regarding acceptable expert testimony. Opponents claim that such laws are unconstitutional, barring plaintiffs’ access to the courts. In Arizona alone, medical malpractice suits have declined 30% as a result of various tort reform measures, including the same specialty requirement.

What do you think of the requirement that experts must share the same specialty in medical malpractice cases? Does it place an improper limit on the pool of possible experts or bar access to the courts? Or does it ensure a more level playing field between the parties?

National Judicial College Tackles Scientific Evidence and Expert Testimony

The National Judicial College, a leading organization in the area of judicial education, is now offering courses  regarding scientific evidence and expert testimony. The next such course is being offered May 6-9, 2013.

Curious about what the judges may be discussing? If so, you can watch a recorded webcast from the 2010 Symposium on Scientific Evidence in Complex Litigation. The 2010 webcast includes presentations on Daubert, admissibility issues in forensic and medical causation cases, and dealing with scientific evidence in complex cases. Presenters included two judges and one law professor.

If you only have time to watch one presentation, I would suggest the last: Dealing with Scientific Evidence in Complex Cases. In this presentation, Justice Victoria Chaney discusses the court's role in complex cases, pitfalls that face judges, discovery and trial considerations, and how/when to handle motions regarding expert admissibility.

While the Symposium is geared towards judges, it is extremely informative for attorneys who handle such cases as it highlights judges' concerns and discusses numerous case management options.

Register Today for Webinar: Getting the Best of Your Expert Witness Through Proper Preparation Techniques

“Getting the Best of Your Expert Witness Through Proper Preparation Techniques”
On-line Webinar
When: March 28, 2013 12:00 p.m.

Mark your calendars for this on-line webinar. Adrienne LeFevre of LeFevre Trial Consulting and Pete Walters, Ph.D, consultant and expert with Thomson Reuters Expert Witness Services, will discuss expert witness preparation techniques and strategies. Among other topics, the presenters will discuss how to begin preparation and disarm opposing counsel during cross-examination.

This 1-hour webinar will benefit experts (new and experienced) and attorneys alike.

Click here for more information or to register. CLE credit may be available depending upon your state.

What Does an Expert Need From You?

Expert Witness Horror Stories

If you’ve been a litigator long enough, you likely have your share of expert witness tales to tell, maybe even some of the horror variety. In this post, I am sharing a few expert witness stories. Most are relayed by attorneys, some verbatim. I have also included one story from an expert. While these may not all be classified as “horror stories,” certainly they present valuable lessons for the reader, if only to consider, “what could I have done differently?” I promise you, if you don’t consider the following stories of the “horror” genre, you will definitely consider them, at the very least, entertaining.

1. An attorney hired a biomechanical expert who held a Ph.D. in physics from major university. “Held himself out as a biomechanical expert, who could provide scientific and analytical evaluation of injuries to determine causation and apply engineering principles to forces exerted on the human body. After expert was disclosed and his report was finalized, no less than five unreported, state court opinions surfaced, attached to a motion in limine. In each of those state court opinions, my expert was precluded from testifying. Once the expert disclosure deadline had passed, opposing counsel moved to strike my biomechanical expert based upon these previous preclusions. At the time, these state court orders were not available online. My expert did not tell me about them. It was especially frustrating and surprising to learn about them for the first time, when they were attached to a motion in limine, seeking to preclude my expert from testifying.” ~Partner at a large law firm in Tampa, FL

2. In prepping for testimony in court, an attorney advised the expert to be civil and polite. Opposing counsel starts badgering the expert during questioning, asking essentially the same question over and over in an effort to paint the expert as an overpaid, hired gun. "You are being paid to be here? Isn't it true that you get paid huge amounts of money to say what your clients wants you to? Aren't you a just hired gun? How many hours have you put in on this case? How much do you get paid each hour? That comes to $18,000, does it not? Isn't that more than most of the jury paid for their cars?" The expert replied: "I tell you what Sir, lets step outside, and I'll trade you my check for yours." The jury laughed. ~Attorney (location unknown)

3. “I had a rape case that I was inches away from trial on (like 4 hours from picking a jury). There was DNA evidence that I got an expert . . . to review. He came back to me with many, many evidentiary requests. His most interesting was that he wanted a print out of the electropherograms. As it turns out, that type of print out was thousands and thousands of pages long. I was able to get the judge to order the prosecutor to do it but not really sure why because the expert would not really tell me exactly why he needed it, just that he had to have it. The reason he needed that, it turned out, was because he did not have software to read the information disclosed by the prosecutor in CD form. This type of software was very very common in his field and should have been available to him. This took up at least 50 hours of attorney time that I could not bill. It turned out that this expert was an academic and not in a lab that practiced DNA review of criminal cases. This by itself is just fine …, but it also turned out that he had never done DNA on a human being before. He specialized in ferrets or something. This was not disclosed to me in my checks and I did ask the company who referred him to me before I was going to hire him. As a solo practitioner, I must be able to trust the company who sends these people to me to do a proper background check to make sure they are good for my case. Solos do not have the time to go through [expert] CVs themselves and read all of their books before putting together a rape trial. $6000.00 of client money later, his testimony would have been worthless and my client had to plea up to the Court. I argued against a prosecutor's recommendation of life in prison and got him 5 years. It took almost 2 years of work to get what he would have gotten at the start.” ~Solo practitioner in Kansas City

4. An expert was called upon to analyze the items found on a suspect that were believed to be marijuana (sometimes referred to as “grass”). After performing lab tests, the expert attempted to contact the attorney several times. She called the prosecuting attorney’s office to discuss the results and left numerous messages. She never made contact, and the attorney never returned her calls. On the day the trial was scheduled to begin, she arrived at court and found the attorney talking to others in the court room. She went over to discuss the test results with him, but he said he didn't have time to talk. During the expert’s testimony, one of the first questions pertained to her lab findings, specifically if she found any illegal substances. In reply the expert said, "I found the concealed substance to be grass." The prosecutor was obviously pleased and pursued the line of questioning further, asking if it was true that “grass” was the slang term for marijuana. The expert responded, "No. I mean that I found grass. Regular lawn grass." As it turned out, the prosecutor was not so pleased in the end. ~Expert specializing in drug analysis

5. “[My partner] and I had an injunctive relief hearing in . . . the USDC. Our expert witness was an older gentleman in his late 60's. He took the stand, and the other side immediately posed a Daubert challenge and started the whole rigamarole asking him about his qualifications. After an hour plus of this, the judge recessed us for lunch. The witness got off the stand, walked over to me, and said "I am not feeling well." I asked what the problem was, and he said "Have I been sworn in yet?" Ummmmm, yes, an hour ago before you testified. Thinking he was asking if the court had forgotten to swear him, I said, "yes, an hour ago and you're doing fine." He looked at me panic stricken and said "I cannot remember the last hour of my life." I knew off the bat it was something neurological and started asking him orientation and weakness questions, some of which he answered okay, and others of which, not so much. I was fearing stroke, so I took him down to the nurse's office. They did what I did and then called 911. Because the guy was amnesia man at that point and was liable to wind up in a bad neighborhood with no wallet and no clue where he lived, I rode in the ambulance and even chose which hospital to take him to. . . He remembered his wife's name, but not phone number, so I had to rifle through his wallet to find an address to call directory assistance for his far away city that was a 2 hour plane ride away. Ultimately, he had something called transient global amnesia, which is a pretty harmless condition triggered [probably] by stress . . . that is common in older men, and which generally resolves by itself in a day or so. Oh, and we lost. Big time.” ~Attorney, small firm in Atlanta, GA

We want to hear your expert witness horror stories. Feel free to share in the comments section.

How to Effectively Cross-Examine Expert Witnesses

The Michigan Bar Journal recently published an excellent article regarding effective cross-examination of expert witnesses. It would be well worth your time to read the article. In brief, the author recommends the following techniques when cross-examining experts:

1) Focus on assumed or inaccurate facts which the expert may have relied on in forming his opinion;
2) Exploit any failure to comply with industry or professional standards or methodology;
3) Expose any bias the expert may have against your client;
4) Attempt to discredit the expert by showing a lack of expertise and/or preparation; and
5) Highlight areas where the opposing expert agrees with your own expert to bolster your expert’s credibility.

These are all good points, but I would also add the following strategies for effective cross-examination of an expert:

1) Focus on the differences between your expert’s and the opposing expert’s testimony. While this point seems to contradict #5 above, it does not necessarily have to do so.  By focusing on differences, can you identify holes in the expert's opinion?  Did your expert consider facts that the opposing expert did not? Can you show your expert was more thorough or that the opposing expert's approach was shoddy or incomplete?
2) Locate and highlight any inconsistencies. Read the opposing expert’s previous works, trial transcripts, articles, books, blog posts, etc. Look for any statements or positions that are inconsistent with the expert's stance in the case at hand. Using the expert’s own words to impeach him is incredibly powerful.
3) Highlight any facts the expert did not consider when forming his opinion.
4) Study the methodology or theory relied upon by the expert. Is there a methodology that is pertinent to the case that the expert did not rely upon? Did he consider the methodology at all?
5) Question the expert regarding materials (case-specific documents, general texts and treatises) he did not rely upon when forming his opinion. Again, the goal is to show the expert was not thorough and consequently raise doubts as to his credibility.

To effectively cross-examine an expert, your own expert may prove invaluable in helping you prepare. Have your expert review the opposing expert’s report and identify any holes, inconsistencies or weaknesses. Additionally, you should always keep the Daubert standards in mind when questioning an expert. If you can show the expert’s report does not comply with Daubert, your cross-examination will prove very effective indeed.

Questioning an expert can be intimidating, but you do not have to be an expert yourself to effectively cross-examine one.