The Expert: Expert Testimony

Expert testimony in a court  trial, deposition or hearing

Why does the court system need experts?

Experts are needed because judges, lawyers and juries may not have knowledge about the technical, scientific or intellectual aspects of the dispute. An expert is sometimes necessary to explain the nonperceptive aspects of the dispute and shed light upon the subject, i.e., “How does a nail work?” “What is odor?” “What is the function of a kidney?” “What role does gravity play?” “What is the life expectancy of a person of 50 years?”

What is an expert?

An expert is a person who is supposed to know a great deal about the technical, scientific or intellectual aspects of a dispute.

Such a person has been educated in that discipline by experience, training, theoretical and practical contact and observation of facts or events, knowledge or skills acquired over time and by formal schooling and/or participation, i.e., technicians, physicians, surgeons, dentists, counselors, architects, engineers, home inspectors, professors, scientists, accountants, etc.

Who should be an expert?

An expert should be a person with a specific skill, knowledge and participation in a specific discipline, science, technology or intellectual pursuit that pertains to a dispute at issue.

Who could be an expert?

Anyone who has a strong knowledge base in a particular field.
Example: A shoemaker, in certain instances, can be a more experienced, believable and knowledgeable expert than a podiatrist in a dispute related to the aspects of shoe comfort, design or construction of a shoe for a particular purpose.

Who should not be an expert?

One who may have some theoretical knowledge about a particular type of disputed technology or science, but has never participated in its use or performance and in its particular application or understanding might not make a good expert. A teacher or professor, who is being used as an expert, may have taught the subject for many years, yet during the trial, it might become evident that the expert has never applied or participated in its real time application. This expert may be disqualified from testifying; this largely depends upon the subject or, more importantly, the judge hearing the dispute.

Are you an expert?

You might be an expert if you have unique training, experience, knowledge and an intellectual understanding of a particular discipline and if you would be comfortable being challenged, badgered, baited and probably insulted on your expertise. The challenge could relate to your education, skill, technological proficiency and understanding of the matter in dispute. Nonetheless, you should be able to control your emotions and not lose your cool and composure; thus, you may be a good candidate to be an expert.

Your Curriculum Vitae (CV)

You CV should contain your life’s experience as it pertains to your expertise (education, papers, books or journals published; most important jobs, positions you held; subjects you taught; awards you received; projects you were involved in; courts you testified in, etc.). All should list year, date and/or duration. It should not look like a job resume, and it should not look like you’re looking for a job or position. Whatever you write in your CV should be totally truthful. If it is not the whole truth and nothing but the truth, the adversary attorney will certainly find out. The CV should fit on a single page and show the creation date at the top.

Whom do you serve?

An expert who is paid to give his or her opinion under oath can only serve one master at a time! The engaging attorney and his or her client is a single master entity!

You are serving both the attorney and his client whose interests must coincide since they both need your help concurrently. You are also serving as the tryer of the facts, by either a judge trying a case without a jury, or a judge and jury together.

You must be a teacher to the attorneys, judges & the jury

Your task, as an expert, is to explain, teach and inform, in the simplest terms, complex concepts of a dispute. This should be done without using trade or professional language or jargon. At the same time, you must try to convert on the fly all your technical, scientific or overly intellectual nomenclature to plain language by being an instant living dictionary and thesaurus. In preparation, you must teach and train the trial lawyer to be as much of an expert as you are in the matter disputed for the short time that the trial, hearing or deposition takes. The more the trial lawyer knows about your subject matter, the more knowledgeable he or she will be better able to question both you and the opposing expert. This will enable the trial lawyer to better serve the client and argue the case with the judge, as well as with opposing counsel.

Cases you should decline to accept

1. A case that is beyond your professional knowledge, expertise and understanding
2. One that you are not comfortable with, no matter what!
3. A case that you may feel is unethical
4. When you are offered more compensation than you deserve
5. When the information and facts given to you are not credible in your professional judgment

Ethical cases

Accept cases as an expert where the matter at issue is totally within your field of education, experience, training, expertise and understanding.

1. Accept a case where you know with certainty that you will not be disqualified at trial.
2. Treat every single case as though you know that it will go to trial.

Record keeping

1. Don’t throw anything away. Save everything pertaining to the case.
2. Create a file with the name of the engaging lawyer, together with the client’s name and date.
3. All correspondence you receive from anyone pertaining to the case should be dated-stamped on the date of receipt, and the mailing envelope kept.
4. Date all your work.
5. Date all photographs and make certain that you save them.
6. Date and save all evidence.
7. Date and save everything.
8. Make a table of contents listing what you have in the file; keep a copy of the table of contents on the outside of the folder, as well as a copy inside the folder.
9. The file folder should be kept in a safe place forever.

Your relationship with the engaging attorney and adversary attorney

The engaging attorney will, in most instances, try to befriend you so that the professional relationship is smooth. He or she will pick your brain. That is what you are paid for.
Be open, totally truthful and forthcoming.

Impart to the attorney all you know about the subject. Don’t hold back anything. Try to think outside the box to help the lawyer prepare the case for the client. At this point in the case, you are the advocate of both the lawyer and the client, trying to help them with all your knowledge, experience and expertise. The lawyer may not know a thing about your skills or the technology that is required in the disputed matter. You are there to help, teach and train so that the lawyer is comfortable with the understanding of the technology or science.

You may never meet the adversary attorney unless the case goes to trial. With regard to the opposing council, be friendly, but do not discuss any aspect of the case even if he or she was once a client of yours. Whether it is a friend, a relative or even your mother, if she is connected in some way with the opposition, do not discuss the case. Do not involve yourself in anything that might be construed as a conflict of interest. If you have a relationship with any person or entity on either side of the dispute, you must inform the engaging attorney as soon as you are aware of the connection. If the attorney says, “Forget it,” DON’T!! Instead, send a letter to the attorney setting forth the relationship and keep a copy.

You and the client, plaintiff, defendant

No matter whose side you are on, i.e., plaintiff or defendant, you must give the engaging attorney your all. One giving testimony should never take sides. This is especially so when you are under oath. Just do your job as an expert to the best of your abilities and then a bit more. Don’t ever let your emotions get in the way of your good sense. Always be beyond reproach. If you sense unethical behavior from anyone connected to the case, bring it to the attorney’s attention. If this is disregarded, make a big fuss about it and bring it up again and again until you are satisfied that your observations are being heeded. Always avoid conflicts of interest.

In New York state, there is a rule that states one cannot serve two masters at the same time. If you do and it is discovered, prepare to be sued by either side should the case not turn out the way it should. If it is part of a trial proceeding, you may be breaking the law, with implications that go far beyond a civil money matter. Don’t do anything stupid. Always be on the alert and awake. Never let the attorney who retained you or anyone else dictate the opposite of what you know to be the truth, the whole truth and nothing but the truth. If it is discovered you did not tell the truth, you may have committed perjury.

Prima facie evidence

The basic material needed to prove a certain fact or proposition.

Evidence good and sufficient on its face, unless rebutted.

Your job may be to find evidence or some basis of how to dispute evidence. This may include reading depositions, documents, bills, photographs, drawings, samples, site inspections and the list goes on and on. You may be called upon to reconstruct a condition, create orthographic projections (sketches), models and develop concepts to explain and describe what you have discovered and/or what your theory is in the disputed conditions, facts, evidence or testimony.

Being a detective, inspector, researcher and scientist

Sometimes, you will need to do research. You may have to examine relevant trade publications; visit building, fire, health, highway and tax departments. You may be required to visit libraries, museums and the Internet. The list goes on and is endless when you are required to prove or disprove a particular piece of primafacie evidence.

You will need to measure, weigh, photograph, take samples for testing or test things on your own so that you can describe, demonstrate and explain in court what and how you did what you did and then render an opinion.

You may be asked about facts that you discovered, even by opposing counsel. If you are asked, you are then testifying as a fact witness, i.e., is one who testifies from his or her own knowledge of the facts. You may not be asked for your opinion by opposing counsel since you may only serve one master and that master is the trial lawyer who retained you. The opposing counsel cannot ask for your opinion on a subject that was not asked of you by your retaining attorney.

In other words, you cannot give an opinion for the opposition. But you may be queried as to the opinion you gave during the prior testimony. The trial attorney should explain the following terms: 1) notice 2) constructive notice 3) cause 4) create.

There are several conditions or concepts that either side needs to know in order to go forward with a case.

1. Actual notice: When either of the parties received written, verbal or visual notice of the condition that may be the subject of the disputed matter.
2. Constructive notice: When a condition existed for time long enough for a party to have known or should have knowledge or is presumed to have knowledge of the existence of the condition even if the party never had actual notice of the condition.
3. Cause: When either of the parties caused the underlying condition, whether by construct or non-construct and thus would be responsible for the existence of the condition.
4. Create: When one of the parties did something physically and therefore constructed the thing that caused the occurrence, and may have not done it well.

Your report

Depending on the subject of the work you have been retained to perform or create, you may or may not be required to write a report. If you are not asked for a report, do not write a report, but keep all your notes and photographs. When this occurs, i.e., not asked for a written report, you would be required to meet with the trial lawyer to review the scope of your investigation and its findings. The conversation with your trial counsel generally is not permitted to be disclosed to the opposing counsel because this is the attorney’s work product. This is usually true in professional malpractice cases and several other areas of trial practice. In most cases, you will be asked to prepare a written report. Understand that this report will be given to the adversary counsel and his or her expert will have an opportunity to review your report and even critique it. So be clear, truthful and succinct in making the report. If you are uncertain whether or not to include some material in the report, meet with counsel before its preparation. It is helpful both in and out of court if the paragraphs of the report are numbered. It should begin with and include or mention your curriculum vitae. It should also include your specific expertise as it relates to the matters at issue and to any hypothesis that will be rendered or discussed. It may be impressive if your report is made into a sworn-type statement, with a place for a notary public to take your oath and attest that the signed report has been sworn to.

More to come next month.

The authors of this paper thank the Hon. Judge Jules L. Spodek, N.Y. State Supreme Court, for his commentary.

References
Black’s Law Dictionary, West Publishing Co.

This article is from a presentation to the Brooklyn Chapter of The American Institute of Architects (AIA).

Copyright © 2009 Ubell Enterprises, Inc. Printed with permission from Accurate Building Inspectors®.