Dealing with Expert Witnesses
Expert \ ‘ek-spert. Syn see specialist, authority, connoisseur, big-shot, maven. Eventually, your career as a litigator will bring you face to face with one of these, and you will have to know how to deal with the situation.
I remember my first expert deposition. I didn’t handle it so well. I was representing a real estate broker who was being sued in a multi-party construction defect case. I was deposing the plaintiffs’ architectural expert on defects at the development. I asked the expert if he had any opinions on whether my client breached any duties to the buyers. He said “no.” I really should have left it at that, but I didn’t. Instead, I wasted half a day exploring in excruciating detail if the expert had any opinions on whether my client should have disclosed each and every specific construction defect listed in the complaint. With eyes rolling and audible moans from the other lawyers in the room, the expert patiently said “no” to each question, thanked me when I was done with my questioning, took out a calculator and happily tallied up his bill.
The lesson is simple. Prepare a smart game plan based on the fundamentals and execute that game plan in a disciplined manner. Most types of cases will have experts. Every medical malpractice case will have experts. It therefore helps to learn – or refresh your recollection regarding – the basics.
There are several general requirements for experts and expert testimony. The subject of the expert’s testimony must be beyond the experience of ordinary witnesses and the testimony must be helpful to the trier of fact. Evid. Code §801, subd. (a). The witness must be qualified as an expert on the subject because of special knowledge, skill, experience, training or education. Evid. Code §720, subd. (a). Experts may also be parties and the jury may weigh that fact in considering the witness’s credibility. Douglas v. Ostermeier (1991) 1 Cal.App.4th 729.
An expert may base testimony on reliable information about the case itself, reliable texts, information given in the form of a hypothetical question, or testing conducted by the testifying expert or another expert. Evid. Code §801, subd. (b); Guardianship of Jacobson (1947) 30 Cal.2d 312, 324. If the expert’s testimony involves a new scientific technique, that technique must satisfy the “general acceptance” test of People v. Kelly (1976) 17 Cal.3d 24, 30.
Here are the steps to take to qualify your expert. Ask your expert his or her profession and area of expertise. Make your expert more than a talking head. Have your expert state the topic about which he or she will be testifying to give the jury an idea of the witness’s purpose in the trial. This is sort of like the thesis statement at the beginning of an essay and helps to set the stage.
Ask your expert to describe his or her background and education. In discussing education, don’t just ask about college and graduate school. Include questions about seminars or other special classes if they pertain to the subject matter of the litigation or the area of relevant expertise. Ask about research papers or other published works your expert has written, especially if they make your expert appear particularly qualified regarding the subject of the action. If your expert received academic grants or honors, ask about them.
Next, you should explore the expert’s work experience. Have your expert explain all special titles such as “professor emeritus,” so the jury can appreciate their meaning. Also, emphasize all prestigious aspects of your expert’s work experience to raise your expert’s credibility.
Attempt to move your expert’s resume into evidence. The resume is arguably hearsay and it arguably runs afoul of Evidence Code §352. But if you get it in, it will serve as a reminder of your expert’s credentials as the jurors deliberate.
Establish that your expert has qualified to testify as an expert in other cases. Discuss the various courts in which your expert has been qualified. Use discretion here, however; there is a potential in this area for making your expert seem like a mercenary or biased in favor of a particular side if he or she only testifies for that side. Also, note that there is no requirement that an expert have prior experience testifying in court. McCleery v. Bakersfield (1985) 170 Cal.App.3d 1059, 1065-66.
Do not stipulate to your expert’s qualification if your opponent offers. It is always better to impress the jury by having the testimony about your expert’s specific qualifications.
If you intend to use a diagram or chart, prepare the foundation in advance of trial. Try to get your opponent’s stipulation before the trial begins. Alternatively, if you need to introduce your expert’s diagram or chart over an objection, establish the expert’s experience making similar diagrams or charts. Ask about the information used to make the diagram or chart. Ask whether the diagram or chart accurately and fairly reflects the conditions depicted or summarized. Establish how it was made and that it is trustworthy. Lastly, check the local rules for any special requirements concerning illustrations, diagrams and charts.
Those are the rudiments, the further explanation of which is probably beyond the scope of this article. For a little more depth, here are some other things to keep in mind to take your chops to that next level.
There are several possible objections that you may raise against your opponent’s expert and that you must anticipate that your opponent will raise against your expert. Preparing prospective rebuttals to these objections will increase your effectiveness in dealing with experts.
There is a possible objection that an expert is not qualified. Either party may request an Evidence Code §402 hearing regarding an issue which might turn on any of the qualifying factors listed above.
There may be statutory requirements concerning expertise that could prevent an expert from testifying. For example, Health and Safety Code §1799.110, subdivision (c), requires five years of experience as an emergency room doctor for anyone who desires to testify as an expert on the standard of care in that field.
Either side may raise an objection that the subject is not one beyond the experience of ordinary witnesses, that the opinion is based on an improper matter, that the expert must be asked to state the basis for the opinion (i.e., that the opinion lacks a proper foundation), that the testimony is irrelevant, that the testimony will not help the trier of fact, that a hypothetical question is incomplete or assumes facts not in evidence, or that the expert’s testimony is prejudicial, time-consuming, misleading or confusing and thus excludable under Evidence Code §352.
As a final thought, it helps to make your expert appear warm and likeable, as well as intelligent and credible. Stand near the jury box during direct examination so that your expert directs his or her answers toward the jury. Ask open-ended questions that allow your expert to fortify his or her expertise without appearing condescending. Ask your expert to stand when using the diagram or chart. That image will remind jurors of a teacher standing at the blackboard, which subliminally evokes child-like trust and reinforces credibility.
I hope these points have been useful, and I realize that any one of them standing alone could have been the subject of a much longer article, but we do the best we can with the time and space available. Good luck, and happy experting!