Venue Variations for Expert Witnesses
By Noah Bolmer
While some expert witnesses work in a single jurisdiction, there are far more opportunities for those who are willing to accept engagements in the many and varied possible venues. Experts may be called upon to deliver their opinions in different State or Federal courts, in administrative court, or even internationally. Each of these environments presents distinct challenges and quirks. Prepare yourself for working in a new venue with these tips from some of our experts.
Different States have Different Rules
While many states adopt the Federal counterpart, or a variation thereof, this is not always the case. Expert John Hughett recommends consulting with your engaging attorney:
[T]here are differences from state to state. One state that comes to mind is Louisiana, which uses Napoleonic law. It is the only place that does and so it is quirky. The law side is not what people hire me for, but you must understand what you can do and what you cannot; that is different when you get in some of these environments. That is when you need to get some counsel from the attorney [. . .] You make sure you are not doing something that would be inappropriate in that particular venue.
Whether expert witness work product is discoverable is a key difference across jurisdictions. Dr. Kantha Shelke explains, “Different states have different regulations. Some states do not have materials that can be discoverable. So, learn the rules first and then figure out how you are going to go about doing what you are doing and keep a very clean and clear mind.”
Another frequent difference that expert witnesses are likely to notice is on Daubert challenges. While the Daubert standard applies in Federal jurisdictions and most states, some states use a modified version, or a different standard for challenging the credibility of experts. It is important to verify with the engaging attorney which standard applies to prepare for any potential challenges.
Subject Matter Venues
Venue describes not only the location, but also subject matter. Even within the same state, there will be distinct laws, standards, and procedures depending on whether a case is civil, criminal, or administrative. Expert Paul Andersen explains:
There are a couple of different venues where an expert can serve. There is a criminal, and we all see that on TV. There is civil, which we all hear about, and then there is OSHA [the Occupational Safety and Health Administration]. These different venues are similar, but different. With the OSHA stuff, that is an administrative court and an administrative process and in most of these cases, the judge is not a judge [but] an attorney that has been appointed. [. . .] In OSHA cases, these administrative judges do not have the right to put you in jail or hold you in contempt If you make mistakes. They can stop you from testifying or remove your testimony. These judges have controls like that, but it is not the same as a criminal court or civil court judge, where if you do not have your ducks in a row, they can make life difficult for you.
He continues, noting a difference in burden of proof standards in OSHA cases:
[W]hen I am on an OSHA case, I usually get it after the citation packet has been issued. Until it becomes final from an order from the ALJ [Administrative Law Judge], everything is just allegations [. . .] OSHA has the burden of proof, and they have to be right. It cannot be a near miss. It cannot be likely. The burden of proof is 100% on them, so you must show that they made enough mistakes.
Dr. Stephan Athan is no stranger to ITC (the United States International Trade Commission) appearances, noting some of the administrative court’s idiosyncrasies:
One thing I can tell you is at the ITC is no jury. You testify in front of an administrative law judge and that’s it. The entire process takes months from beginning to end. Most patent-infringement cases take years. It might be a year before you are deposed. Then another year before the trial. [. . .] The ITC is a completely different animal. [. . .While] the procedural issues are the same, the biggest thing is there’s no jury; you’re in front of a [judge] and that’s your goal. That’s your target. Otherwise, preparations, reports, and depositions are all the same.
International Considerations
International courts may be completely unfamiliar to experts, and research is crucial in these situations. Although your truthful, neutral expert opinion doesn’t change, the way in which you gather data may be affected. Expert Dean Barron has worked across the globe:
I’ve had many clients as a consultant in Europe and Japan, and I’ve had expert witness cases in Hong Kong as well—one of the things that’s different now, maybe because I’m a statistician and I deal with data—but it is important to note that the data is stored in foreign languages, and foreign languages are not always read properly, even by statistical software [. . .] a digit may not even get recognized at all because they write their digits differently, and maybe it’s a special character.
With such a broad range of venues, each with their own rules, he recommends researching:
[F]or example, let’s take labor law; I’ve had several times where knowledge of Belgian labor code could have been important–and of course it’s completely different. Same thing with British [labor code]. I had a potential case where it was someone in the United States doing a project for a company in Paris, being paid by a company in England, and it was a little tricky to know which labor law applied? Which employment law applied? Someone if they’re 40 is the important age in the United States. But it isn’t that number everywhere in the world. Overtime is another one even within the states, of course, there [are] distinctions of what employee gets overtime, but all of those are different state to state. Some of them are different city to city. In California for example, there [are] different minimum wages applicable in different cities and then depending on the year, may be the different sized companies. So same thing with the area and same thing with other states. What you do is research.
After researching and consulting your attorney, you may even find, fortunately, that there are not major differences. Such is the case with international arbitrations that Mr. Hughett has worked on:
Some of the cases that I have done internationally have been arbitrations. One I did was in Vienna, Austria and then I did another one that was on the other side of the world. Those are like doing arbitration in the United States. You have an arbitrator, and they were single arbitrators; both of them. They were using International Chamber of Commerce rules. They had the same rules as those rules we use even here in the United States, so there were not any changes to those.
Still, even when certain bodies of law are similar, there may be ethical standards that quite different. Professor Jorge Contreras cautions:
As the expert, you don’t have to be familiar with the actual procedural rules at all, although there are ethical rules and rules about experts that are different in different countries. I’ve served as an expert in the United States before courts and the International Trade Commission, but also in courts and tribunals in the UK, Germany, and Brazil. [. . .] In a foreign court, my job as an expert is to educate that court about U.S. law. I am giving an opinion about what U.S. courts have done in the past, how they consider issues, and what U.S. law is.
He goes on to detail his experience in opining on US law for complex international actions:
The types of cases that I’m involved in are multi-national, multi-jurisdictional cases where U.S. law is relevant to what’s going on [. . .] The U.S. matter may be going on concurrently and the foreign court needs to know certain things. The foreign court is often deciding whether it should take jurisdiction over a case or whether it should stay its own proceedings in view of what’s happening in the U.S. The U.S. courts are making the same decisions. It’s important for the foreign court to know what the procedures are. What the decisions are in the U. S. from an objective expert who is not counsel to one of the parties. In some cases, the foreign court will be applying U.S. law, like the U.S. court hearing a case that involves a contract governed by Swiss, Swedish, or French law. The U.S. court will look at expert testimony to see what Swiss law is on this question. Then the U.S. court will apply the Swiss law. In a foreign court, I would be an expert opining to the Foreign Court on what U.S. law would be.
Sometimes, the differences can be shocking to US-based experts. Expert Mike Slinn recalls an experience which ran completely counter to American procedure:
This was a tribunal of five judges that I had to present in front of. There were seven experts on our side and there was one expert, myself, who would speak for the combined opinion of all of us. At the end of the case, there was only one expert for the other side. This other expert and myself were brought before the tribunal of five [where] they fired questions at us and we had an opportunity to respond freeform. We would start by letting each other speak, and then sometimes we would get into interrupting and discussion, and this is what the tribunal wanted. They wanted [us to give] the real truth and they were just going to grill us until we believed something was right. That does not happen in the United States.
Billing Considerations
Whether to bill a client for additional research when working in a new venue is at the discretion of the expert. In some cases, the engaging attorney will hire an expert specifically for specialized knowledge of a venue, but often, it is for expertise in a field. In those cases, it is important to understand at the outset. Mr. Barron does not always invoice for additional research, but in certain cases he will, recalling:
Well, [in one case] I didn’t bill [because. . .] I thought that was my own education interest, but there certainly would be cases where it would be billable. If it’s something more extensive [. . .] I still would talk about it first, like, “yes, I’m an expert, but this is what I don’t know, and I don’t think I should be responsible for having [to] know it, so what should we do?” I’m not sure that would be something I’d really have to think about to say, “No, this is a special request by the attorneys and it’s their responsibility, not mine.”
Be Prepared
Working in a new venue requires careful consideration and preparation, and experts must consider this before accepting an engagement. Dr. Russell Froman is wary of new venue pitfalls:
Always be yourself but also do your homework. One of [my] cases took place in another state and [I] was not familiar with their state laws. It took a lot of preparation for me to learn the state law in regard to the nexus between the state law and federal rules and regulations that I was serving as an expert witness. Their counsel went directly to that and focused on the state law. If I had not [prepared], it would not only have been embarrassing, but would have been bad for the case in such a way that I would have been unhappy with how I had presented myself. My recommendation would be to do your homework on the states in which your case is sitting because it makes a difference.
Working in new venues is a challenging, yet exciting way to expand your expert witness repertoire. With experience in different subject matter venues and jurisdictions, engaging attorneys will know that you are adaptable and prepared to learn, giving you a distinct advantage!
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