Transcript September 20, 2012 COMMANDMENTS OF EXPERT …

KELLY DOBBS BUNTING, ESQUIRE,
Greenberg Traurig
CHAD L. STALLER, J.D., M.B.A., M.A.C., A.V.A
The Center For Forensic Economic Studies
#1



Expert’s opinion based upon
background, training, and experience
will assist trier of fact
Add valuable testimony which assists
in the presentation of the case-inchief or rebut claims made by
opposing side
Value added service
#2


They are small boutiques with a
limited selection of goods and
services.
Not using any expert is better than
using an unqualified expert.

If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case.





(1) whether the theory or technique about which the
expert is testifying can be or has been tested;
(2) whether the object of the testimony “has been
subjected to peer review and publication;”
(3) the known or potential rate of error of the theory or
technique;
(4) the existence of standards and controls; and
(5) general acceptance in the relevant scientific
community (no longer the sole factor but “can yet have
a bearing on the inquiry”)

If scientific, technical or other specialized
knowledge beyond that possessed by a
layperson will assist the trier of fact to
understand the evidence or to determine
a fact in issue, a witness qualified as an
expert by knowledge, skill, experience,
training or education may testify thereto
in the form of an opinion or otherwise.

In order for expert testimony to be
admissible, “the thing from which [the expert
testimony is deduced] must be sufficiently
established to have gained general
acceptance in the particular field in which it
belongs.”
#4






Credibility
Integrity
Demeanor
Personality
Experience
Technical Prowess

Expert opinion must be consistent with
◦ Applicable professional standards
◦ Facts of the case: there is no absolute truth, only a
rational explanation of the occurrence
◦ Juror’s common sense and life experience
◦ Scientific rigor



Basis for opinions: qualitative and
quantitative
Sufficient explanation to allow reproduction
of calculations by qualified individuals
Assumptions and their basis




A collection of technicalities
A group of unsupported declarations
Derived from unsupportable assumptions
provided by counsel
A simple list of methods and figures
#5

The common law—as interpreted by
the U.S. courts in the light of reason
and experience—governs a claim of
privilege unless any of the following
provides otherwise:
◦ the United States Constitution;
◦ a federal statute; or
◦ rules prescribed by the Supreme
Court.
 But
in a civil case, state law
governs privilege regarding
a claim or defense for which
state law supplies the rule of
decision.


In re: Cendant Corp. Securities Litigation, 343 F. 3d 658 (3d Cir.
2003)
◦ It is true that in some cases the attorney-client privilege may be
extended to non lawyers who are employed to assist the lawyer in
the rendition of professional legal services. This extension of the
privilege to non lawyers, however, must be strictly confined within
the narrowest possible limits consistent with the logic of its
principle and should only occur when the communication was
made in confidence for the purpose of obtaining legal advice from
the lawyer. If what is sought is not legal advice or if the advice
itself is the accountant's rather than the lawyers, no privilege
exists.
U.S. v. Patrick J. Roxworthy, in the capacity of Vice President, Tax
Yum! Brands, Inc. (6th Cir. No. 05-5776, August 10, 2006



Permits government to withhold documents
containing “confidential deliberations of law
or policymaking, reflecting opinions,
recommendations, or advice.”
Privilege’s purpose is to “prevent injury to the
quality of agency decisions.”
What is notprotected:
◦ Factual information, as long as it is severable from
the confidential deliberations
◦ Communications made after the agency makes its
decision
Redland Soccer Club, Inc. v. Department of the
Army of the United States, 55 F.3d 827, 853 (3d Cir.
1995)

Ordinarily, a party may not discover documents
and tangible things that are prepared in
anticipation of litigation or for trial by or for
another party or its representative (including the
other party’s attorney, consultant, surety,
indemnitor, insurer, or agent). But, subject to
Rule 26(b)(4), those materials may be discovered
if:
◦ they are otherwise discoverable under Rule
26(b)(1); and
◦ the party shows that is has substantial need for
the materials to prepare its case and cannot,
without undue hardship, obtain their substantial
equivalent by other means.
Rule 26(b)(1) describes the general scope
of discovery.

A party may depose any person who
has been identified as an expert
whose opinions may be presented
at trial. If Rule 26(a)(2)(B) requires a
report from the expert, the
deposition may be conducted only
after the report is provided.
 Rules
26(b)(3)(A) and (B) protect
drafts of any report or
disclosure required under Rule
26(a)(2), regardless of the form
in which the draft is recorded.
Rule 26(a)(2) refers to disclosure of expert
testimony.

Rules 26(b)(3)(A) and (B) protect
communications between the
party’s attorney and any witness
required to provide a report under
Rule 26(a)(2)(B), regardless of the
form of the communications,
except to the extent that the
communications:
Rule 26(a)(2)(B) refers to experts who
must provide a written report
relate to compensation for the
expert’s study or testimony;
 identify facts or data that the party’s
attorney provided and that the expert
considered in forming the opinions
to be expressed; or
 identify assumptions that the party’s
attorney provided and that the expert
relied on in forming the opinions to
be expressed.


Ordinarily, a party may not, by
interrogatories or deposition,
discover facts known or opinions
held by an expert who has been
retained or specially employed by
another party in anticipation of
litigation or to prepare for trial and
who is not expected to be called as
a witness at trial.
 But
a party may do so only:
◦ as provided in Rule 35(b); or
◦ on showing exceptional
circumstances under which it is
impracticable for the party to
obtain facts or opinions on the
same subject by other means.
Rule 35(b) refers to reports of physical
and mental examinations


Work prepared in anticipation of litigation by
an attorney or his agent is discoverable only
upon a showing of need and hardship;
“Core” or “opinion” work product that
encompasses the “mental impressions,
conclusions, opinion, or legal theories of an
attorney or other representative of a party
concerning the litigation” is “generally
afforded near absolute protection from
discovery.”
In re: Cendant Corp. Securities Litigation,
343 F. 3d 658 (3d Cir. 2003)
 Privileges
as they now
exist or may be modified
by law shall be
unaffected by the
adoption of these rules.

In a civil matter, counsel shall not be
competent or permitted to testify to
confidential communications made to
him by his client, nor shall the client
be compelled to disclose the same,
unless in either case this privilege is
waived upon the trial by the client.
Protects same categories of documents protected by
federal deliberative process privilege
 To claim the privilege, the government must show that

◦ (1) the communication was made before the deliberative process
was completed and
◦ (2) the communication was deliberative in character, i.e., it was a
direct part of the deliberative process in that it made
recommendations or expressed opinions on legal or policy matters.
Id.
Information that is purely factual, even if decision-makers
used it in their deliberations, is usually not protected.

Unified Judicial System v. Vartan, 557 Pa. 390, 399,
733 A.2d 1258, 1263 (1999)

Self-Critical Process Privilege
◦ Not well-defined and not generally recognized
◦ Grounded on the premise that disclosure of documents
reflecting candid self-examination will deter or suppress
socially useful investigations and evaluations or
compliance with the law or professional standards.
◦ Party asserting privilege must show that:
 the information must result from critical self-analysis
undertaken by the party seeking protection;
 the public must have a strong interest in preserving the free
flow of the type of information sought;
 and the information must be of the type whose flow would
be curtailed if discovery would be allowed.
Van Hine v. Comm. State Dep’t, 856 A.2d 204 (Pa.
Commw. 2004)
#6





This case is going to settle
You don’t need to know that
Can you do it for less?
The lawyer on the other side doesn’t
understand the issues
Can you do it this way, just this once?


No secrets. Bad facts can have
explanations, but theories that ignore
bad facts cannot be explained
(especially at trial)
Consultation
◦ Document production
◦ Interrogatories
◦ Deposition

Voir Dire
◦ Establish Trust
◦ Establish Role
◦ Establish Tone
Tell the jury how you will meet its
expectations of what an expert can
contribute. This is the expert’s chance to
sell himself / herself to the jury.
Blah,
Blah,Blah,
Blah…



Present a logical, compelling and coherent
theory that makes sense
Provide enough detail to prevent the jury
from inferring information that would be
harmful
Fully explain technical concepts that are
critical to understanding the opinion





Acknowledge warts
Allow the Q & A to flow: avoid long
narratives, avoid rapid fire short answers
to long questions
Teach the jury: look for understanding
Reduce the conflicts facing the jury
Use visuals—created on the spot if
possible




Be decisive
Emphasize accuracy and certainty
Maintain eye contact with jurors
Avoid jargon



Use redirect to explain issues
left unsaid
Stay away from problem areas
Read cues from the testifier
#9



Strategic Decision—understand the opinion or
destroy it
Gather information as a basis for trial—define
four corners of opinion
Don’t over-depose—surprises can be fun





Confuses the story
Technically correct but
immaterial
Appears to be quibbling
Is argumentative
Fails to take jury to a new place

E.G., attack on credentials
◦ “Do you advertise?”
◦ “Have you published?”

Opens big, wide door for opposition to tell
its story, e.g.
◦ “Please explain to me how you arrived at…”
◦ “Why did you assume…”






Short
Issue-oriented
Exposes illogical thinking
Reveals lack of factual/scientific
knowledge
Avoids nit picking
Sets up your expert

TELL YOUR STORY VIA OPPOSING WITNESS
◦ “I want you to assume….”