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Expert Witness Reports – Avoiding Litigation Sand Traps – What They Should and Should Not Include
You have hired an expert and are in need of a report or findings for you expert disclosures. What do you do? Here is a short checklist of things to consider: 1. Compliance with Federal Rule of Civil Procedure 26. This probably is a good place to start. The Rule provides in pertinent part… →
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Top Mistakes in Choosing Experts
Here they are… 1. Hiring an expert too late. Experts can be helpful and sometimes essential in properly investigating and evaluating a case. They can provide guidance in drafting discovery requests and determining whether information has been overlooked, withheld or lost. They are also invaluable in assisting in deposition preparation and questioning of the… →
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Screen Your Expert and Treat Your Case Right by Avoiding Any Big Tricks…
An area which is often overlooked is screening your expert. This is important. Treat it like you would a major purchase, because it is. (a) Review and verify Curriculum Vitae. You can devastate an expert if he lies on his CV. I have done this before with experts who had a long history of… →
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Setting the Table for Admitting Your Expert’s Testimony.
To serve your expert’s testimony up to a jury you must consider and establish the following: 1. Qualifications. You need to know precisely what you are using your expert for, and then determine if the expert’s scientific, technical, or other specialized knowledge will help the trier-of-fact to understand the evidence or to determine a particular… →
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Proper Objections at Your Expert’s Deposition
Palais de justice historique de Lyon, France Objections should be kept to a minimum. The Rules contemplate that objections should be concise and afford the examiner the opportunity to cure the objection. See Fed. R. Civ. P. 30(c)(2) (noting that “objection[s] must be stated concisely”); id., Advisory Committee Notes (1993 Amendments) (noting that “[d]epositions… →
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Locating the Right Expert… Is It Like Looking for a Needle in a Haystack?
The right expert can educate and enlighten a jury and help prove your case. Below are some suggestions on how to locate an expert. (a) Classes of expert witnesses in academia, working professionals, and full time professional experts. These are the three primary areas from which you are likely to obtain experts in anticipation… →
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Expert Witness Retainer Agreements – Striking the Right Deal.
Here are points to consider: 1. Cannot be a contingent fee arrangement. This is unethical and would be disastrous regardless… enough said. 2. Cost of initial consultation. This should be free or nominal, but make sure this is clear. 3. Definition of scope of work. This should be set out in the initial engagement letter… →
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Should I Hire an Expert? Seeing the Light…
So you think you need to hire an expert? When should you do so? Consider the following: 1. When to Hire. It is usually advantageous to hire an expert as soon as it is clear you will require one. Oftentimes, you will be hired by a client on a moment’s notice to investigate and document the scene… →
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Common Knowledge Exception to the Requirement for Expert Testimony in Professional Negligence Cases – Sometimes Its Child’s Play.
Is the information within the common understanding of the jury? Rule of Evidence 702 governing expert testimony does not always apply and bar lay testimony on issues which are just plain common sense. In certain instances the answer to whether there was professional negligence is intuitively obvious and needs no explanation by an expert or… →
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Discovery, Privacy, Personal Freedom and Social Media
I don’t see myself as a hero because what I’m doing is self-interested: I don’t want to live in a world where there’s no privacy and therefore no room for intellectual exploration and creativity. Edward Snowden There is an assault on our privacy. We need look no further than headlines involving Russian hacking of our… →
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Leaders, Loners and the Art of Jury Selection.
Often times you cannot eliminate troublesome jurors. This can be a real problem since developing challenges for cause against an unfavorable juror can be difficult and at times impossible. In such cases, you want to use your peremptory challenges against such persons if they will affect the outcome of your case. In federal capital cases, both… →
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When silence is golden… The tacit admission.
Indiana Rule of Evidence 801(A) provides: A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.A tacit admission may be made when a person remains silent or makes an equivocal response to an accusation which the person would ordinarily be expected… →
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Don’t Let Your Adversary Spoil Your Case.
Don’t let your opponent spoil your case by destroying or obfuscating evidence relevant to your case through spoliation of evidence. “First party” spoliation refers to spoliation of evidence by a party to the principal litigation, and “third party” spoliation refers to spoliation by a non-party. Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 350 (Ind. 2005).… →
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Motion in Limine: An Effective Pretrial Tool and Weapon – Wrongful Death & Remarriage (Part 6)
The defense oftentimes wants to muddy the waters and misdirect or sway the jury away from a person’s cause with information that is irrelevant or unfairly prejudicial. Wrongful death cases are no exception and remarriage is one of those topics. Fortunately, Indiana court’s have joined the majority of jurisdictions which have prohibited such tactics by… →
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FAST AND DIRTY JURY SELECTION
The time allowed for jury selection now is typically very brief compared to the time allotted to attorneys years ago when I first started practicing. I used an approach similar to the one suggested here in picking criminal juries where I had much more time to explore the qualifications of jurors and their potential biases.… →
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Erroneous Recognition, Flyfishing and the Honest “Liar”
An “disinterested” adverse eyewitness has just testified and has devastated your case. You know they are wrong, but they were so convincing. They seemed so sincere. What if the jury believes the witness is sincere? If they think the witness is not lying, is all lost? Eyewitness testimony is inherently dangerous. In fact, “erroneous recognition”… →
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The Truth of the Matter When It Comes to Impeachment.
So a witness changes their story on the stand and as a result your case is at risk of being directed out for insufficient evidence. Can impeachment with a prior statement save the day? Maybe… In order to present extrinsic proof of the prior statement, it will have to be authenticated by the impeached witness… →
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Confirmation Bias: Foe of Justice and Truth
“Confirmation Bias” has nothing to do with the Holy Spirit. It is a mindset we all are susceptible to in the way we see the world. ‘Confirmation Bias’ is a psychological phenomenon that explains why people tend to seek out information that confirms their existing opinions and overlook or ignore information that refutes their… →
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All Things Have a Rhythm Inluding Your Closing and Examinations
I was listening to a new album by cousin Peter Neff that he created in collaboration with his co-composer Mauricio Yazigi titled Spanish Guitars. The sound and rhythm is mesmerizing. It reminded me that a good cross-examination or closing argument has its own rhythm and melody. The pace and delivery both lulls and controls the… →
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How to Exclude Self-Serving Reports by Testimonial Experts
So you’re at trial and your opponent wants to offer into evidence their expert’s written report… What do you do? Is it admissible? The short answer is no. Expert’s reports are documents prepared in anticipation of litigation and do not have the inherent reliability of documents typically considered and admissible under exceptions to the hearsay… →
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The Barrister's Toolbox 