Credibility of the Expert and Weight Afforded Expert Testimony: Jobs for the Jury

Haley v. Am. Farmers & Ranchers Mut. Ins. Co. (W.D. Okla., March 29, 2013)

In a recent case, a federal court reiterated that it is the province of the jury to determine the credibility and weight to be given to an expert’s testimony, not the court. The case deals with personal injuries sustained by plaintiffs in an automobile accident. Plaintiffs’ psychologists determined that one of the plaintiffs had developed PTSD as a result of the accident.

Defendants moved to exclude plaintiffs’ expert testimony under Daubert. Defendant did not dispute that plaintiffs’ experts were qualified to provide expert testimony as to plaintiff’s mental health condition, but instead argued that the experts’ opinions were unreliable. In support of its motion, Defendant argued that plaintiffs’ experts did not consider prior medical history and treatment for anxiety and depression, thereby contradicting the diagnostic criteria for PTSD. Plaintiffs countered that the experts did consider prior medical history and treatment, which did not preclude a diagnosis of PTSD. In denying Defendant’s motion, the court held that:

"the opinions of Dr. Shaw and Dr. Bianco appear to be sufficiently based on their education and experience as neuropsychologists to be reliable, and thus admissible. The crux of Defendant's argument is that the expert opinions expressed by Drs. Shaw and Bianco are suspect because they failed to consider information that Defendant believes was pertinent to a PTSD diagnosis, based on Defendant's reading of certain diagnostic standards and scientific literature. These arguments, however, go to the credibility and weight to be given the neuropsychologists' opinions, which are matters to be determined by the jury."

(Emphasis added).

A good reminder that, while the court acts as the gatekeeper for expert testimony under Daubert, it is ultimately the jury’s decision whether to heed the testimony of the expert.

Expert Witness Deposition Preparation Outline

Whether you are a seasoned expert who has testified at hundreds of depositions or you are facing your first deposition, it helps to be organized. If you are prepared, you will feel more comfortable during the deposition and exude more confidence.

To that end, I would recommend using this Deposition Preparation Outline prepared by SEAK, Inc. It is an excellent resource and could prove invaluable in helping you organize and prepare for your next deposition. Additionally, for newer experts, it will give you a better idea of what types of questions to expect at the deposition.

As an expert, the impression you make at your deposition makes a big difference. If you are organized, prepared, and confident, you will come across as more knowledgeable and more credible.

The Possible Danger of Relying Solely Upon Attorneys for Case 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?

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.

Can a Judge Limit the Number of Experts Testifying at Trial?

The Demolition of Defense Expert in Jodi Arias Trial: A Tutorial on What NOT To Do

Ever doubt the concept that an expert can make or break a case? Or that your words (or, in some cases, a single word) can be used to impeach you on cross-examination?

In this video, Richard Samuels, a psychologist testifying as an expert for the defense in the Jodi Arias murder trial is effectively and powerfully impeached when opposing counsel jumps on his use of the word "speculate." Additionally, you will see that the expert gets combative, which makes the impeachment that much more powerful.

The expert's reputation was repeatedly impeached as well as prosecutors jumped on ethic violations and a seemingly improper and personal relationship with the defendant. So to, the expert's mistakes were highlighted, giving the impression that he was sloppy.

Even more interesting, Arizona is one of only a few states that allows jurors to question witnesses through written questions posed by the judge. Jurors in the Arias trial submitted more than 70 written questions to Samuels, asking about specific details regarding his diagnosis and shedding light on their doubt regarding his testimony in general. So, it would seem the jurors were not impressed with Samuels either.

In addition to the jurors, legal commentators almost universally criticized Samuels performance, opining that the prosecution effectively portrayed him as a hired gun whose testimony is barely credible. One commentator, citing the damage to the defense's case as a result of Samuels's testimony, went so far as to state that the defense should not have even put him on the stand.

The slicing and dicing of Samuels is every expert's worst nightmare, but in his many blunders, both on and off the stand, there is much to be learned.

Register Today for On-line 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.

Why Lawyers Do/Do Not Want to Work With Particular Experts

In a very informative paper presented at the 2009 ABA Section of Litigation Joint CLE, lawyers explore the “do’s” and “don’ts” of working with experts. One of the most informative and basic questions was: “Why would you want someone as an expert? Why would you NOT want someone as an expert?” According to lawyers who responded, some of the reasons a lawyer would want someone to serve as an expert included:

• Previous testimony experience;
• Expert has survived Daubert challenges in similar cases;
• Good credentials and has been published on the issue;
• Expert has a track record of success;
• Other lawyers speak favorably of the expert;
• Good communication skills; and
• Willingness to collaborate with counsel.

Reasons why lawyers would NOT want to work with a particular expert included:

• Expert did not survive previous Daubert challenge in a similar case;
• Ethical issues or other problems in the expert’s background that have been exposed in previous trials or depositions;
• Insufficient experience or lack of credentials;
• Too “wishy-washy” with expert opinion;
• Unwillingness to accept guidance from counsel;
• “Too much baggage” (i.e. can be easily impeached); and
• Cannot withstand cross-examination.

Most of this information should not come as a surprise, but it should serve as a good reminder of what lawyers consider when hiring an expert.

What would your list look like if you were asked to indentify characteristics of attorneys you do or do not want to work with?

The Role of the Expert in Other Countries*

How does the American judicial system stack up against other countries with regard to the role of expert witnesses and admissibility of expert witness testimony? While Frye and Daubert have been widely criticized, no method of determining admissibility is perfect. Let’s take a tour of some foreign jurisdictions to see how they approach expert witnesses in litigation.

CANADA

Canada uses a four-part test to determine expert witness admissibility: (1) relevance of the expert evidence; (2) necessity in assisting the trier of fact; (3) “the absence of any exclusionary rule;” and (4) whether “a properly qualified expert” exists. New or novel scientific theories are subject to “special scrutiny” and subjected to the Daubert factors of admissibility, including, peer review and publication, rate of error, acceptance in the scientific community and testing. Experts in Canada owe an express fiduciary duty to the courts that they will offer testimony objectively and independently of the party who hired the expert.

UNITED KINGDOM

Similar to Canada, jury trials are much less common in the UK than in the United States. Additionally, a claim involving complex evidence is considered inappropriate for jury trial. In general, admission of expert testimony in the UK is not based upon reliability of the evidence. As a result, the standard for admission of expert testimony is extraordinarily low. Legal scholars in the UK have concluded that the evidence need only be relevant to be admitted and that the expert be more knowledgeable on the subject than the jury. Evidence may be more heavily scrutinized during the “merits phase” by the judge.

GERMANY

Judges in Germany play a much more active role in litigation than judges in the US. This extends to the selection and examination of expert witnesses. After the initial pleadings stage, the judge decides whether an expert is necessary. If so, the judge will appoint an independent expert to assist him. The judge may ask the parties to assist in selecting the expert, but generally the judge will select the expert with little to no input from the parties. The judge instructs the expert on what issues to address, and the expert has a duty to render a neutral opinion. The expert prepares a written report and is sometimes called to testify. In the vast majority of cases, the court defers to the expert and accepts the expert’s opinion, which has led some to criticize the expert as the “de facto decision maker” in the German judicial system. A party may object to the neutrality of the court’s expert or request another expert be appointed at the sole discretion of the judge. If neither of these requests are granted, a party may hire a private expert to supplement the record.

JAPAN

The Japanese judicial system is similar in many ways to the German system. Like German judges, Japanese judges act as primary case manager. A party can request that the court appoint an expert, but the court will ultimately decide whether an expert opinion is required. If an expert opinion is needed, the court selects the expert from the “expert commissioner” registry maintained by the Supreme Court. The judge provides the expert with the necessary materials to decide the contested issue. An expert issues a report and will sometimes provide oral testimony. Parties may object that the court-appointed expert is biased, may question the court-appointed expert directly or via written questions (similar to interrogatories), or retain a private expert to supplement the record. Similar to Germany, court-appointed experts hold tremendous influence with the judge.

What do you think of these approaches? Do you see anything in these approaches that would be a positive influence on the American judiciary system and admissibility of expert evidence in this country?

*Information for this post was obtained from a recent Marquette Law Review Article. Andrew W. Jurs, Balancing Legal Process with Scientific Expertise: Expert Witness Methodology in Five Nations and Suggestions for Reform of Post-Daubert U.S. Reliability Determinations, 95 Marq. L. Rev. 1329 (2012).

Protect Yourself from Possible Expert Witness Pitfalls

Today’s expert faces a multitude of pitfalls, some from the attorney who hired you. A previous post dismissed the myth that an expert enjoys absolute immunity from malpractice claims. So, what can you do to protect yourself?

First, you must recognize possible pitfalls. Some examples of pitfalls include: receiving incomplete documentation, pressure to change your report or changing the report without your permission, designation without permission, non-payment of fees, last minute or excessive schedule changes, being purposefully conflicted out of a case, and asking you to do something that violates your professional ethics. 

Second, be proactive. Tackle the issue head on, before it becomes a problem. One way to do this is to address your concern and directly state your position in the retainer agreement. SEAK has written an on-line article entitled How to Draft an Expert Witness Retention Agreement that Prevents Most Problems Experts Face. It’s worth reading and, if necessary, making the appropriate edits to your current retainer agreement.

Third, document, document, document. If an attorney has answered interrogatories on your behalf without consulting you, send an email or a letter memorializing it.  If an attorney has changed your deposition date at the last minute and you cannot attend on that date, send a letter, specifying your conflicts and noting, if appropriate, the last minute notification of any schedule change.

But there are some problems that you may not know about until after they arise. Designation without permission (DWP) is a prime example.  DWP is a growing concern among experts and understandably so. It is a murky area with regards to legality and can have a tremendous effect on your livelihood as an expert. For some very valuable and helpful suggestions, this link discusses ways other experts have tackled the issue of DWP.

In any case (whether DWP or another problem), you want to address the issue as soon as it arises. State your position clearly and, if applicable, refer back to the clause in your retention agreement that addresses it. If you feel an attorney is taking advantage of you or has exposed you to potential liability, confront the attorney with your concerns amicably in an effort to resolve any conflict. If the situation persists or if your concerns are ignored, you may have to reconsider your involvement in the case to protect your reputation and your livelihood as an expert witness.

Winner of 2013 Industry Trends Short Survey Contest: Dr. Linda Ellis

Dr. Linda Ellis is the winner of our 2013 Industry Trends Short Survey Contest! Dr. Ellis won a $500 American Express gift card for answering three short survey questions.
 
Dr. Ellis holds a B.A. in Anthropology from the University of California, Los Angeles and an M.A and Ph.D in Anthropology from Harvard University. Prior to her current position as a Professor of Museum Studies and Senior Curator of the University Museum at San Francisco State University, Dr. Ellis taught at Harvard, the University of Massachusetts-Boston, and Tufts University. Dr. Ellis has taught courses in a number of areas, including museum security, authentication of art and antiquities, collections management, curatorship, and ancient history and archaeology. Dr. Ellis has received the Meritorious Performance & Professional Promise Award from SFSU, and the Museum Studies Program has received nationwide recognition.

Since 1979, Dr. Ellis has conducted archaeological research in Romania and has conducted forensic excavations of human burials and dissociated evidence. Dr. Ellis has published three books and numerous professional articles on archaeology and has studied museums and collections across Europe and North America. Dr. Ellis has served as a national museum surveyor for the American Alliance of Museums, conducting on-site evaluations of museums, and has taught courses on museum collections management for museums in Micronesia.  Dr. Ellis has confronted museum thefts and smuggling operations of antiquities from both Asia and Europe. 
 
Congratulations Dr. Ellis.