CHAPTER 1

TURNING EXPERTS INTO EXPERT WITNESSESPRELIMINARY PRINCIPLES

Any thoughtful reflection on the challenges of managing a largecivil trial practice soon settles on the question of expert witnesses.Experience indicates that in a typically busy practice, expert witnessproblems arise at least weekly. Expert issues, what is more, are almostnever routine or simple administrative matters that can be easily dealtwith. They are almost always of crucial importance to the individualcase in which they arise. By extension, then, they have ramificationsthat affect the entire law office. Whether as catastrophic as an expert'scomplete disintegration/collapse on the witness stand at trial or as simpleas fractiousness in scheduling and calendaring, these failures cannot beignored. They require the commitment of significant resources of timeand energy for resolution. And frequently their impact is significantlynegative on case outcome.

Expert witness problems can be grouped into three general areas.

First, difficulties often are generated by a lack of contextualunderstanding on the part of the expert of the peculiarities of thelegal system and the courts. Much confusion results from the realitythat assumptions and practices taken for granted by lawyers andjudges are quite distinct from those that operate in other professionaldisciplines.

Next, there are breakdowns in good communication. These breakdownsresult from failure to ensure explicit understanding between the referringattorney and the expert as to the purpose and scope of the assignment,the preparation of formal reports, and the provision of quality deposition/trial testimony. Regardless of the source, communications confusion isrepeatedly experienced in expert witness practice.

Finally, lack of collaboration in administrative matters of arrangingexaminations, inspections, meetings, depositions, and court appearancesare a continual frustration.

It is occasionally (and mistakenly) said, "Leaders are born, not made."By extension it is also commonly, and again incorrectly, thought that agood expert witness is either naturally born to the work or not, and thatskill as a witness cannot be taught. It is the thesis of this chapter thatwith reasonable and effective teaching, anyone with the native ability andfaculties to attain the status of expert can, in addition, learn to be a goodexpert witness.

Specific and intentional education to achieve the foregoing is needful.It should comprise a carefully crafted curriculum of study with interactiveelements that document progress and recognize and certify successfulcompletion. Attention to the three concepts of context, communication, andcooperation forms a workable framework for appreciating how the witnesspotential and capability of experts can be markedly improved and is a pointof departure for developing teaching strategies and curricula.

I. Context

The context of expert witness activity is the modern legal system and thecourts. Therefore, a rudimentary understanding on the part of the expert ofhow and why the law and the courts function as they do is essential. Mostexperts are learned in some scientific field of inquiry. Medicine, engineeringof all kinds, architecture, biomechanics, accident reconstruction, andaccounting (to list only a few obvious examples) are all firmly rootedin scientific inquiry and the scientific method. All these disciplines relyfundamentally on observability, repeatability, and verifiability as the basesfor the inquiry that undergirds their conclusions.

Law is unscientific in the sense that at its core, a legal case involves theprocess of reconstructing a single, unique past event, a past event that bynature is no longer observable or repeatable. Law is much less rooted inscientific method than it is in historical method and in promoting a fair andaccurate reconstruction of the event upon which legal conclusions can bedrawn and decisions made. Experts should understand that the epistemologyof the law (that is, the way the law learns what it learns and knows what itknows) is altogether different from that of their own disciplines. In practicalfact, this means that the expert's interaction will not usually be with otherpersons of scientific training and assumptions, but persons trained in history,rhetoric, English, and political science. One might profitably think of themas people who prefer crossword puzzles to Sudoku. Much confusion isgenerated between attorneys and their experts as a result of this underlyingand dramatic difference in basic assumptions.

Inasmuch as expert witnesses undertake to expand their practicesinto the legal arena, they should anticipate and be prepared for the factthat referring attorneys expect them to be willing to commit to acquiringa working knowledge of the legal system and the hows and whys of itsoperation. Any effort directed toward preparing experts for effective witnesswork must consider as of first importance the context of the legal system,its historical development, and its current manner of operation.

II. Communication

Having cleared away the confusions created by poor contextualunderstanding, the improvement of all aspects of communication betweenexperts and their referring attorneys is the next order of business. Capableexpert witnesses need to be able to effectively impart information as well asalso to demand it. Good expert communication starts with an expert whois able to demand from the referring attorney all of the information anddetails necessary both to understand the purpose and scope of referral and tocomplete the assignment. Any expert should feel free, not only at the time ofreferral but also throughout the pendency of the assignment, to contact thereferring attorney and secure all necessary information and assistance.

Having thoroughly and completely understood the assignment andcompleted it with the utmost of professional ability and zeal, experts nextface the challenge of communicating their opinions and conclusions inthree different realms: (1) the report, (2) the deposition, and (3) testimonyat trial. Obviously not all referrals involve every type of communication.Most assignments (in particular medical ones) will require a report. Someentail giving a deposition. Very few, but a significant number nevertheless,will require an appearance at trial.

Each of these communication events is distinct and requires thedevelopment of different skills. However, the order in which they occuris important, and each event builds upon the other. The preparation ofa high-quality report forms the basis for effective deposition testimony.Then the giving of a good deposition, if it does not avoid the need for trialaltogether, is essential in being prepared for a good jury presentation.

The specifics of the subject of communication are diverse andcomplicated, but it cannot be overemphasized that the development ofsuperior expert witness communication skills is the axis upon whichthe entire effort turns. Their development alone will promote the othertwo elements of context and cooperation. Teaching good, full-spectrumcommunication by way of report writing, deposition testimony, and trialpresentation is the essence of improving expert witness effectiveness.

III. Cooperation

After securing good contextual understanding and excellentcommunication, brief attention to the matter of mutual cooperation iswarranted. Legal people often experience many challenges when attemptingto secure examination and deposition dates from experts. Horrifyinglyworse, from the perspective of the referring attorney, is being told thatthat the medical expert, as only one example, is unable to attend trial asscheduled due to an emergency surgery. It might be thought, particularlyin view of the significant money that is invested in experts, that a highlevel of cooperation in scheduling and appearing for depositions and trialwould go without saying. Recent experience demonstrates that it oftendoes not.

No expert should undertake legal work without first fully understandingthe practical requirements that it will entail. Trials are set months, even asmuch as a year, in advance of their start dates. In most states and in thefederal courts, there is a detailed pretrial expert disclosure procedure thathas numerous date-sensitive and inviolable time deadlines. Experts will berequired to respond fully to the quotidian exigencies of legal work in termsof being willing to appear on comparatively short notice and to be patientwith the numerous continuances and postponements, which always seemto characterize the legal process and which usually result from actions andconsiderations entirely beyond the control of the referring attorney.

Mutual cooperation is best secured through education. Whenthe parties to expert witness practice clearly understand each other'sdemands, pressures, and professional obligations, the road to success ismade easier. Although basic, some might say obvious, careful attention tofull professional cooperation will be required in any process designed todevelop better expert witnesses.

It is hoped this analysis demonstrates the reality that while expertwitness practice is fraught with pitfalls for all concerned, they are notinsurmountable. A comprehensive and carefully thought out trainingeffort to teach experts to become good witnesses can readily be developedand will achieve commendable results. These results will measurably raisethe quality of expert witness practice and testimony and will have thenotable collateral benefit of lifting the quality of practice of all professionalsinvolved and promote the effective administration of justice generally.

Experts are routinely learned and well qualified in their fields of study,certification, and experience. This does not necessarily mean, however,that they are automatically schooled and competent in performing asefficient participants in the legal process and as effective witnesses. Whilethis next level of preparation is intricate and involved, good educationalprocesses, curricula, and practical experience will adequately address anydeficiencies.

This process of securing significant overall improvement of expertwitness practice starts with a good working knowledge of the variousconstituencies who practice law and operate the courts. After that, thereis needed a healthy appreciation of the challenges that confront experts ona daily basis. Finally, a brief discussion of experts and their offices, on theone hand, and legal people, on the other, will help each to understand howboth can most effectively work together.

CHAPTER 2

THE CARE AND FEEDING OF LEGAL PEOPLE:HOW TO WORK TOGETHER EFFECTIVELY

The courts, litigation attorneys, and their offices deal with experts, theiroffices and administrative personnel, and expert issues every day. From theperspective of legal people, these encounters are routinely frustrating,difficult, and many times unrewarding. This is by no means to fix blameon nonlegal professionals, but it does point out the need for much greatermutual understanding of common and competing professional wants andneeds. What follows represents the viewpoint from the legal side as to howexpert professionals can better understand and address the exigencies oflegal practice at those frequent times when the respective practices coincide(not to say collide!).

It should be recognized as a first order of business that a certainunavoidable symbiosis exists among the professions, such that awarenessand embracing of the need to work together will promote more effectivecollaboration for the greater good of all. Further, legal practitioners fall intoseveral categories, whose challenges and work routines are quite distinctfrom one another. They require separate understanding by those on theexpert practitioner side. Finally, a number of practical suggestions foreasing our joint path can be readily identified.

(It is candidly acknowledged that these observations are producedfrom the vantage point of a legal professional looking at other professions.It is to be hoped that a similar commentary might be forthcoming fromthe nonlegal perspective looking at the legal side. It would be gratefullyreceived and carefully considered.)

The Reluctant Symbiosis

Howsoever unenthusiastically it may often be embraced, the symbioticrelationship between the nonlegal, especially medical, professions and thelegal profession is inevitable and indissoluble. Medical issues, as a notableexample, are central to (in some cases absolutely essential to) a significantnumber of prevalent areas of the law. These include personal injury law,family law, criminal law, and workers' compensation. Public entity law,corporate law, contract law, or real estate law are not thusly grounded. Thelegal areas listed above where medicine, again by way of example, and lawcross intimately affect the lives, freedoms, and livelihoods of the litigantsmuch more than in other areas.

The professional code of ethics for the medical profession obligesphysicians as citizens to assist in the administration of justice.

The significance to society of our professions closely interacting isdifficult to overstate.

The relationship between medicine and the law stands as an excellentstarting point for illustration of the close relationship that at all times andin all circumstances exists between the various professions and the law.The following discussion emphasizes medicine but may be applied to otherprofessions.

The proportion of legal cases in which the medical or psychologicalhealth of litigants, parties, or witnesses has been placed in issue isextraordinarily high, and the result is that all medical personnel who havetreated these persons are likely to become involved in their legal cases.Medical issues represent essential inquiries in most injury cases, at boththe claims and litigation stages. Lawyers, judges, and juries are dependenton the medical profession to explain, objectify, and predict the future of alitigant's medical situation.

Our societal vehicles for the compensation of injuries and thedetermination of criminal guilt or innocence cannot operate withoutmedical participation.

Conversely, medicine depends on the legal profession for the socialand financial stability needed for it to flourish. In no small measure, thelaw is a benefits delivery system that provides the equitable, orderly, andenforceable delivery of monetary assets to those who require medical care.When it works as intended, recipients of benefits will in turn compensatethe people who are caring for them (and who often will need to continue tocare for them on into the future). Courts, judges, and attorneys operate thesystem that secures the stream of commerce that enables effective medicalpractice to occur in peace, stability, security, and prosperity.

It is not possible to practice medicine in a vacuum where the law doesnot intrude.

There is, thus, an unavoidable interdependence between the medicaland legal professions that their practitioners are left without alternative butto warmly accept and willingly embrace. Practitioners of other professionswill appreciate that similar symbiosis exists between their professions andthe legal profession and will likewise recognize the importance of mutualcooperation and understanding.

Full appreciation of the legal side of this equation starts with descriptionof the various practitioners of our profession and the ways in which theiractivities fit into the whole of the practice of law.

Dramatis Personae:The Legal Cast of Characters

The principal groups of legal people that expert professionals can expectto encounter are judges, juries, attorneys, paralegals, and legal secretaries.Each group has its distinct professional and administrative challenges, andeffective collaboration will recognize these and respond to them.

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