Ten Deadliest Mistakes of Expert Witnesses
Ten Deadliest Mistakes of Expert Witnesses
Are you an expert? Technical knowledge isn’t enough, as Michael G. Kaplan explains. An effective expert witness must understand the dynamics of trial, possess excellent communication skills, and have a full command of the litigation process. Here are 10 mistakes that 35 years of experience have taught Kaplan to avoid.
Federal Rule of Evidence 702 teaches us that an expert is one, who by virtue of his or her skill, knowledge, experience, education, and training, can provide testimony that can assist a judge or jury to reach the correct verdict.
Experienced experts know that, in addition to the characteristics described in FRE 702, an expert must have a command of the litigation process, understand the dynamics of trial, and possess excellent communication skills in order to be truly effective.
To evolve from neophyte to effective seasoned expert, one must shed common misconceptions about the expert’s role and learn to avoid common mistakes. Those who do not evolve find themselves not only with a collection of unhappy attorneys and clients, but often find themselves with significantly limited careers.
The following presents some of the mistakes that can prove deadly to even the most technically competent experts:
- The expectation that the judge or jury will read the expert report. No matter how complete, well documented, and clearly written the expert report is, a judge’s caseload and the realities of managing the courtroom suggest that there is little likelihood that the judge will read the expert’s report.This can prove frustrating for experts who pride themselves on delivering state of the art professional reports.
An effective expert knows that he or she typically must convey the substance of the report through oral testimony. In addition, the expert’s report is often inadmissible as evidence. This will render the report unavailable for review by the jurors, who would probably be uninterested in reading the report even if it were available.
There is one thing that an expert can expect for sure. Opposing counsel and the opposing expert will dissect and analyze the report carefully and use it as a roadmap for cross examination.
- Landmines in the expert report.Landmines provide counsel with food for effective cross-examination. Landmines typically take the form of standard disclaimer language that CPAs and other financial experts embrace.Examples are compilation reports, prominent disclosure of reliance upon other experts for significant pieces of foundational evidence, and disclosure of reliance upon representations of the litigants or other third parties without verification.
A good cross-examining attorney can transform standard disclaimer language into the expert’s lack of thoroughness and unwillingness to accept responsibility for his or her work. In addition, financial experts, who are so careful and meticulous about their numbers, are often less attentive to the textual portions of their reports.
- Failure to verify representations and assumptions provided by counsel and the client.While an expert’s objective is to formulate a defensible opinion, the attorney’s objective is to win the case. An attorney will often communicate with his expert in ways intended to shape the expert’s perception of the evidence.Occasionally, important evidence is withheld from the expert—intentionally or inadvertently. Occasionally, experts are asked to adopt assumptions that may, taken out of context, appear reasonable, but given the circumstances of the case, may be totally inappropriate. And in those situations in which the expert has direct contact with the litigant, the expert must expect that most of what the litigant says is colored with the litigant’s own bias.
An expert who spends too much time with a client runs the risk of confusing the litigant’s bias with the actual evidence. Accordingly, an expert who fails to verify the attorney’s and the litigant’s representations, runs the risk of formulating shaky opinions and having them crumble when more reasonable assumptions are introduced.
- Over-sanitizing the expert’s file.Some attorneys ask to review the expert’s file prior to the expert’s deposition. Counsel may intend to ascertain that all documents in the expert’s file support not only the expert’s opinions, but also the theme of the case.As part of this process, counsel may ask to remove documents that could be problematic to the case. These documents often are in the form of notes, correspondence, and draft reports. When the items that are removed are among those considered by the expert in the formulation of his or her opinions, their removal may prevent opposing counsel from gaining access to documents that are, by law, discoverable.
Should opposing counsel learn—during the expert’s deposition, independent discovery, or via some other means—that relevant documents have been removed from the file, the expert runs the risk of embarrassment, impeachment, or possible exclusion.
- Puffed CV and over aggressive marketing materials. Experts are well advised to err on the side of conservatism when preparing and updating their Curriculum Vitae. It is not uncommon for opposing counsel to have a background check run on an expert. This process often reveals any inaccuracies, inconsistencies and exaggerations on the expert’s CV which provide the basis for embarrassing cross examination.Marketing materials can also be a minefield. Brochures, websites, directory listings, social networking internet sites, and advertisements in professional journals are typically intended to serve one purpose—to generate additional business.
Occasionally, the marketing materials suggest that retention of the firm’s experts will result in a positive outcome of the lawsuit. Again, this provides great food for productive cross-examination as opposing counsel uses the marketing materials to suggest that the professional is not an unbiased expert, but, instead, is an advocate.
Accordingly, it is important for an expert to review the marketing materials of his or her firm to ensure that they are free of incorrect information, over aggressive representations, and other suggestions of advocacy.
- Failure to anticipate motions in limine.A common question asked of an expert in deposition is “Have you ever been excluded as an expert?” The expert who answers this question in the affirmative may find opposing counsel encouraged to expand his or her pursuit of the expert’s vulnerabilities.Sometimes opposing counsel’s successful motion in limine to exclude the expert is the result of retaining counsel’s missteps. However, careful planning on the part of the expert could have avoided the expert’s exclusion. This planning typically includes reviewing counsel’s expert witness disclosure setting forth a description of what counsel represents the expert’s testimony will be. It also includes disclosures in the experts report evidencing that the expert’s methodology meets the Daubert and other relevant tests.
The expert must also a clear understanding with counsel that the expert’s input will be solicited should a motion in limine be filed. Successful experts understand that motions to exclude expert testimony are customary tactics used by opposing counsel and that there is a need to plan in advance for the possible defense of the challenge.
- Failure to embrace professional standards. You have to know the rules if you are going to play by the rules. And for expert witnesses, knowing the rules means understanding the professional standards that govern their work. Although professional disciplines typically do not have strict recipes for the performance of a given assignment, they typically do have standards that guide the practice and define the boundaries of professional service and conduct. There is never a good excuse for departing from professional standards.
- Disregard for “Miranda” rights.An expert must recognize that he or she is always on stage. Anything that the expert does publicly is discoverable. Of course the expert’s prior testimony and works authored are clearly discoverable pursuant to FRCP 26(a) 2(B) and parallel state rules. An expert must recognize that statements made during presentations at professional conferences as well as the presentation materials are likely to be discovered, and used for impeachment if the presentation conflicts with subsequent testimony of the expert.“Off-the-record” comments to the opposing expert, opposing counsel, or any member of the adversarial team are likely to find their way “onto the record” should they be helpful to opposing counsel’s case. An expert who told the other expert that “his client had an intelligence level one notch above that of a cactus” found his exact words quoted in a declaration executed by the opposing expert. An expert must avoid situations in which statements can be attributed to the expert, even though he or she never made them.
In a recent matter, an expert shared a taxi with two experts on the other side of the case. These experts were professionals who he knew as they practiced in the same field, attended the same professional conferences, participated in the same list serves, and had several mutual professional friends.
At trial, one of the opposing experts testified that this expert had admitted to certain weaknesses in the evidence supporting his client’s case and his opinions. The second expert for the other side corroborated this testimony.
Although the expert never made this statement, he had put himself in a situation that allowed his adversaries to fabricate self-serving evidence. The bottom line is that an expert is always on stage.
- Use of cookie cutter opinions.Again, an expert must always assume that reports from prior cases will find their way into opposing counsel’s hands. Although opposing counsel is typically looking for opinions that conflict with the expert’s opinion in the current case, occasionally, the prior reports reveal that the expert’s opinions are nearly identical in every one of the expert’s cases.The expert whose report states, “This is the worst case that I have ever seen,” will have his or her credibility greatly impaired when opposing counsel introduces several prior reports, each of which is the worst case that the expert has ever seen.
Likewise, the malpractice expert who works for plaintiffs 95 percent of the time is subject to interesting cross-examination, particularly if the expert, over a span of twenty years, has never opined that a defendant actually met the standard of care.
Another risk of using “cookie cutter” opinions is the possible imperfection of the “search and replace function” of word processing programs. Occasionally an expert report will include names, data, and other information related to a previous case. This suggests that not only is the expert careless, but also that the expert’s opinions are merely a replication of opinions formulated in a prior and unrelated case.
- The belief that technical competence eliminates the need for communication skills.An expert must not forget that judges and jurors do not have the same professional background that an expert has. Typically, the trier of fact benefits little from a detailed explanation of all of the technical evidence underlying the expert’s opinions.Often, well-founded opinions rendered by a well-educated and highly competent expert are rejected by a judge or jury because the expert did not communicate his or her opinions in a manner that was understandable by the judge or jury.
During post-verdict interviews, many jurors report that they did not understand a word of the testimony of one of the experts. Accordingly, when delivering expert testimony, the expert must avoid tech-talk and deliver opinions in clear language understandable by non-experts. An effective expert will paint a picture in the mind’s eye of the jurors and enable them to understand the expert’s testimony.
An effective expert will also pay careful attention to body language, eye contact as well as continually read the “pulse” of the jury. This non-exhaustive list highlights ten common areas in which experts often misstep. An expert must realize that it is the expert’s responsibility to anticipate the stumbling blocks and be prepared to respond to the challenges.
Michael G. Kaplan, CPA, CVA, CFFA has more than 35 years of experience in the areas of forensic accounting, business valuation and litigation consulting. He is the principal of Kaplan Abraham Burkert Associates, Forensic Valuation Consultants and senior advisor at Freeman & Mills, Inc., Consultants to Management & Counsel. Reach him as email@example.com