Category Archives: experts
(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 of litigation. Each has its advantages and disadvantages as discussed below.
(b) Referrals from other attorneys. This is my preferred method. It’s like
buying a used car that someone else has already checked out and driven over rough terrain. They will often have past depositions or trial testimony you can read. They can effectively sum up the witness’s strengths and weaknesses so you know what to expect.
(c) Expert witness locating services. Not my favorite, but they can be very helpful in locating persons with obscure areas of expertise or in litigation local experts dare not become involved due to peer pressure such as in professional negligence cases. The fees charged by the experts are substantially higher because the service tacks on
substantial hourly surcharges. However, such services typically vet the experts and can
provide you with sample reports or depositions.
(d) Local universities and colleges. This is a great source for top-notch professors. Local professors are knowledgeable, well read and well versed on the latest
developments in their fields. They are usually skilled at teaching and have experience in
educating and helping others understand difficult and technical topics. Often they have
written in your field of study at issue. The most common drawback is the fact that they
sometimes lack the practical background and work experience. Also, because they have
published, opposing counsel can use your expert’s own material to impeach them and exploit their beliefs and positions against your client’s claim.
(e) Authors of authoritative textbooks. The principles outlined above are
equally applicable here. Such experts are conservative. They value their position and reputation as an expert in their field. They can make excellent consultants and assist you
in locating testimonial experts given their knowledge and connections.
(f) Authors of journal articles. The principles outlined above are equally applicable here. When dealing with more obscure topics they can be very helpful assuming they have written on the topic at issue. However, they may never have testified
before. Are they quick on their feet? Are they good under pressure? Will they stay poised? Do they lack practical experience needed to give them credibility? Screening and preparing such witnesses can be critical if they lack experience testifying in court or
in a deposition.
(g) Leaders in business or industry. Such persons are natural leaders and
may have personality and charisma which may be lacking in some academic type. They
may be well known locally and respected. They have practical experience that may trump
the theoretical musings of those in academia. These aforementioned weaknesses in some
instances are the business leaders’ strengths. Will they come across more as an advocate
than as an impartial expert? Will they fall into the trap of sparring with opposing counsel
and lose their composure? Are they venerable to attacks because they are not as well
versed or updated in the area or field at issue? Again, screening and preparing such witnesses can be critical if they lack experience testifying in court or in a deposition.
(h) Skilled witnesses. These are persons already involved in the case. They
should not be overlooked. They have practical experience in your case. They may also
fall within some of the other categories outlined above which further weighs in their favor. Fate chose them, not you. They thereby avoid the stigma of being considered a “
(g) Expert Witness Firms. Such persons are full-time “expert witnesses”
and are hired guns. That being said, if they have a good reputation for being honest brokers they can be excellent choices. They are battle tested and know how to handle the
pressure of a deposition or testifying at trial. They will be more skilled at dealing with trial tactics and better capable of maintaining their composure even if something goes
awry during their testimony. You want to avoid such experts if they are known as “
whores.” They will have a wealth of prior testimony that can be used against them
which could render them impudent as a credible expert. Screening is critical.
I hope this information helps you locate the best expert witness for your case.
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
3. Definition of scope of work. This should be set out in the initial engagement
letter in a straightforward, succinct manner.
4. Determining whether the case will be billed hourly or in stages. This should
be discussed at the front. Are you doing it by the hour or by the job to be performed? By the job
avoids runaway expenses, but can lead to experts cutting short the work that needs to be done.
5. Setting a budget. This avoids surprises for both sides and eliminates the stress of
6. Regularity of billing statements. Same as above. It eliminates stresses and
surprise by not including the expert’s bill in your final statement of charges or in the
reconciliation to your client.
7. Estimate of costs associated with forensic testing and/or scene work. Such
work can involve outside contractors or specialists. You want to budget these out as well.
8. Cost benefit analysis of economy versus completeness. If you cannot afford to
do everything necessary, cover it with your client first! Explain that the costs ultimately are
either paid directly or indirectly. Some clients will raise hell after you settle their case even though you may have fronted the expenses and resolved the case very favorably. Keep your client informed of the cost in advance of incurring it.
9. Cost associated with satisfying federal court or state court disclosure
requirements. What costs in your jurisdiction are to be borne by the party, versus the opponent?
Initial disclosures or answers to interrogatories are usually the financial responsibility of the party who hired the expert.
10. Cost associated with responding to discovery requests. Additional requests for
information or discovery may not be had for free. Under Federal Rule of Civil Procedure
Unless manifest injustice would result, the court must require that the party
(i) pay the expert a reasonable fee for time spent in responding to discovery under
Rule 26(b)(4)(A) or (D); and (ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert’s facts and opinions.
If you are in state court, check your jurisdiction’s law and make sure your expert is paid
in advance of doing the work.
I hope you strike the right deal.
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 of an incident. If you regularly practice in a particular area,
you may already have knowledge of experts you have used in the past who can competently assist you. Valuable evidence can be lost forever if you fail to conduct a prompt investigation. In order to ensure critical evidence is not lost or spoiled, expert investigators are essential to augment or oversee investigative work conducted by others, especially in the areas of forensics, product liability, computers, motor vehicle collisions, fires or airplane, environmental and/or
2. Expert’s Role/Witness or Consultant. From the moment you consider hiring an
expert, you need to ask a litany of questions: Is an expert needed for purposes of investigating the case or evaluating the case’s merits? Could your own expert hurt more than help your case? Could the expert better act as a sounding board, provide contrarian analysis and assist you in developing the facts? Do you need help finding a top-notch expert for your case? Is there information that you cannot risk being revealed due to its inflammatory nature, but nonetheless to get expert input in order to prepare for the worst? If so, then you may be best served by obtaining a consulting expert. Most jurisdictions recognize that consulting experts are subject to a qualified work product privilege claim. If the nature of your case raises a choice of law or forum question, be aware of the relevant case law in all applicable jurisdictions.
3. Necessity or luxury. Not every case requires an expert who is retained in
anticipation of litigation. Skilled witnesses such as treating healthcare providers or governmental investigators and experts may already be involved who can assist you in developing and establishing the issues of liability, causation, or the extent of damages. On the other hand, is an expert required by the law, complexity of the facts, or needed to assist and educate the jury? In cases of professional negligence (malpractice), expert testimony is
almost always required. Without it, you are subjected to a summary judgment motion or worse, a motion for a directed verdict. What was the standard of care? Was it breached? This is an issue
that needs to be addressed early-on before you spend vast sums of time and money litigating a case which lacks merit. Malpractice cases are the most difficult ones to win. Here in Indiana, less than 80% of the malpractice cases tried to a jury result in a plaintiff’s verdict. Early evaluations prevent you from embarking on a bad business venture that will serve neither you nor the client.
These are the type of questions which need to be asked and answered early in the litigation.
Common Knowledge Exception to the Requirement for Expert Testimony in Professional Negligence Cases – Sometimes Its Child’s Play.
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 anyone else. (i.e. missed statute of limitation date, leaving behind a sponge or tools in a patient’s body following surgery).
In Indiana, medical malpractice cases where expert opinion evidence is not necessary typically involve the failure of the operating physician to remove some foreign object from the patient’s body. See for example:
Funk v. Bonham (1932), 204 Ind. 170, 183 N.E. 312 (sponge left in abdomen);
Ciesiolka v. Selby (1970), 147 Ind. App. 396, 261 N.E.2d 95 (teflon mesh left in abdomen);
Klinger v. Caylor (1971),148 Ind. App. 508, 267 N.E.2d 848 (“surgical padding” left in intestinal tract); and Burke v. Capello (1988), Ind.,520 N.E.2d 439 (cement left in hip).
Likewise, in a similar fashion, res ipsa loquitur applied when a patient’s oxygen mask caught fire during surgery. Cleary v.Manning, 884 N.E.2d 335, 339 (Ind. Ct. App. 2008).
This same sort of common sense approach is endorsed in other jurisdictions as well. See the following examples utilizing the common knowledge exception:
Bernsden v. Johnson, 174 Kan. 230, 236-37, 255 P.2d 1033 (1953) (applying exception when post-surgery choking was caused by metal disc lodged in patient’s throat);
Biggs v. Cumberland County Hospital System, Inc., 69 N.C.App. 547, 317 S.E.2d 421 (1984) (where patient is known to be in weakened condition and is left alone in shower, where she falls, expert testimony on standards for nurse’s aides was not required);
Burks v. Christ Hosp., 19 Ohio St.2d 128, 131, 249 N.E.2d 829 (1969) (sedated, obese patient fell from hospital bed without side rails);
Cockerton v. Mercy Hospital Medical Center, 490 N.W.2d 856 (Iowa App.1992)(where patient fell while in x-ray room expert testimony was not required on hospital’s negligence);
Dimora v. Cleveland Clinic Found., 114 Ohio App.3d 711, 718, 683 N.E.2d 1175 (8th Dist.1996) (patient fell after student nurse left her unattended at her walker while opening a door);
German v. Nichopoulos, 577 S.W.2d 197, 202-03 (Tenn. Ct. App. 1978) overruled on other grounds by Seavers, 9 S.W.3d at 96; Green v. Lilliewood, 272 S.C. 186, 249 S.E.2d 910 (1978) (holding tubal ligation rendering intrauterine device and other birth control device useless constitutes a matter of common knowledge);
Hickman v. Sexton Dental Clinic, P.A., 295 S.C. 164, 367 S.E.2d 453 (Ct. App. 1988) (holding evidence presented was sufficient for the jury to infer without the aid of expert testimony a breach of duty to dental patient where patient testified an unsupervised dental assistant rammed a sharp object into patient’s mouth);
Hubbard v. Reed, 168 N.J. 387, 395, 774 A.2d 495, 500 (2001)(case in which the defendant dentist allegedly pulled the wrong tooth);
Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d Cir.2003) (personnel failed to call treating physician to determine how often insulin was to be administered);
Newhall v. Central Vermont Hospital, Inc., 133 Vt. 572, 349 A.2d 890 (1975)(expert testimony not required where nurse failed to respond to sedated patient’s call and patient got out of bed and fell);
Palanque v. Lambert-Woolley, 168 N.J. 398, 400, 774 A.2d 501 (2001)(misread the specimen identification numbers as plaintiff’s test result numbers and mistakenly determined that plaintiff had an ectopic pregnancy)
Robbins v. Jewish Hospital of St. Louis, 663 S.W.2d 341 (Mo.App.1983) (expert testimony not required where bed rails not raised and brain damaged patient fell out);
Rule v. Cheeseman, Executrix, 181 Kan. 957, 963, 317 P.2d 472 (1957) (all four cases applying exception when sponge was left in patient after surgery);
Schraffenberger v. Persinger, Malik & Haaf, M.D.’s, Inc., 114 Ohio App.3d 263, 267,683 N.E.2d 60 (1st Dist.1996) (patient alleged that doctor negligently and erroneously informed him that he was sterile following a vasectomy);
Schwartz v. Abay, 26 Kan.App.2d 707, 995 P.2d 878 (1999) (applying exception where surgeon removed 60% of the wrong vertebral disc);
Thomas v. Dootson, 377 S.C. 293, 659 S.E.2d 253 (Ct. App. 2008) (recognizing expert testimony was not required for claim arising from a surgical drill that burned skin on contact because claim would fall within the common knowledge or experience of laymen);
Veesart v. Community Hospital Asso., 211 Kan. 896, 508 P.2d 506 (1973) (expert evidence not required where elderly patient fell while going to bathroom);
Walker v. Southeast Alabama Medical Center, 545 So.2d 769 (Ala.1989)(where bed rail left down contrary to doctor’s order and patient fell, no expert testimony required on standard of care);
Washington Hospital Center v. Martin, 454 A.2d 306 (D.C.App. 1982)(mere fact that patient falls in hospital will not normally require expert testimony on hospital’s negligence).
It is important to know your state’s law on this point and plan accordingly. Hopefully, the cases cited above are of use.
“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 beliefs.’
“Confirmation bias” can lead to misdiagnosis, researching errors, missed evidence and analytical flaws in our every day thinking. That’s why it is important to always try and strive to keep an open mind when you investigate claims, research legal issues and critique the analysis of your experts as well as those of your opponent.
In medical malpractice cases for example, the doctor can start off with a predetermined idea as to the cause of the patient’s medical problem. This can result in the doctor ignoring or overlooking important evidence which would lead to an accurate differential diagnosis. The patient’s suffering is prolonged and exacerbated because the wrong treatment is given.
In the relm of criminal litigation, police and prosecutors may prematurely focus on a prime suspect and ignore other persons who could potentially be responsible for the crime at issue. The popular Netflix docu-series “Making a Murderer” about Steven Avery is a classic example of how this can occur. The focus of the investigation is prematurely narrowed. As a result, investigative leads are ignored. Evidence is overlooked and lost forever.
An excellent book, “The Innocent Man” by John Grisham also documents the same type of errors. The belief of the police, that they had their man, blinded them to the truth. This resulted in an innocent man, Ron Williamson, being wrongfully convicted of a crime he did not commit. At one point, Williamson was five days away from being executed. Ironically, the actual perpetrator of the crime sent the police chasing the false lead and caused the State to prosecute and convict the wrong man (Ron Willamson) of the murder along with another man. This man’s only crime was being Ron’s friend and refusing to give false testimony implicating Ron Willamson in a rape-murder neither of them committed. Thanks to the Innocence Project, both men years later were released and exonerated through DNA testing performed on the victim’s clothing.
Such informational bias and prejudice on the part of juries may make a fair verdict impossible or very difficult to obtain. You must deal with this problem in your voir dire examination and seek leeway from the court to thoroughly explore such biases. This requires the use of mock juries, jury questionnaires, individual examination of jurors, adequate time for jury selection and in some instances a change of venue or venire.
Social media, sensational news articles and reader comments can pollute the jury pool. Bias and unsubstantiated claims fill the air of the community. These must be explored. In this regard, please read the article below:
So keep an open mind and it just might be the key to your case.
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 rule such as Indiana Rules of Evidence 803 and 804.RULE 803. Indiana Rule of Evidence 803(6) recognizes this danger. IRE 803(6) states:
Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(9) or (10) or with a statute permitting certification; and
(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
(Emphasis Added). Clearly, a report by a hired gun hardly provides circumstances indicative trustworthiness. In Re: Termination of Parent-Chile Relationship of E.T. and B.T., 808 N.E.2d 639 (Ind. 2004), the Indiana Supreme Court observed:
[The] business records exception to the hearsay rule is “based on the fact that the circumstances of preparation assure the accuracy and reliability of the entries.” Wells, 261 N.E.2d at 870. As we have observed more recently, the reliability of business records stems in part from the fact that “the organization depends on them to operate, from the sense that they are subject to review, audit, or internal checks, [and] from the precision engendered by the repetition…” Stahl v. State, 484 N.E.2d 89, 92 (Ind. 1997); see also Advisory Committee’s Note to Fed. R. of Evid. 803(6) (observing that business records are made reliable by “systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation.”
Id. at 642-43. The Court went on to explain that if a business does not rely on certain records for the performance of its functions then those records do not fall into the hearsay exception for records of regularly conducted business activity. (See also Palmer v. Hoffman, 318 U.S. 109, 111 (1943), where the Court upheld the exclusion of a railroad engineer’s statement. “[I]t is manifest that in this case those reports are not for the systematic conduct of the enterprise as a railroad business. …[T]hese reports are calculated for use essentially in the court, not in the business. Their primary utility is in litigating not in railroading.“)
A retained expert’s report is not subject to review, audit, or internal checks for use in the expert’s business nor is it relied upon by the expert in the performance of business functions. In Re: Termination of Parent-Chile Relationship of E.T. and B.T., 808 N.E.2d 639 (Ind. 2004). Instead it designed and created for use in litigation. IRE 803(6) requires that the method or circumstances of the preparation not indicate a lack of trustworthiness.
A report is not trustworthy when the Defendant hires an individual to prepare it if the primary motive for preparing the report is for litigation. Certain Underwriters at Lloyd’s, London v. Sinkovich, 232 F.3d 200, 205 (4th Cir. 2000). “Litigants cannot evade the trustworthy requirement of Rule 803(6) by simply hiring an outside party to investigate an accident and then arguing that the report is a business record because the investigator regularly prepares such reports as part of his business.” Id. See also, Echo Acceptance Corp. v. Household Retail Services, Inc., 267 F.3d 1068, 1090-91 (10th Cir. 2001); Lust v. Sealy, Inc., 383 F.3d 580, 588 (7th Cir. 2004).
These sentiments are echoed in Judge Robert Miller’s Courtroom Handbook on Indiana Evidence, in reference to Rule 803(6) he notes:
“Documents made in anticipation of litigation, including computer printouts are generally not admissible under Rule 803(6).” Certain Underwriters at Lloyds , London v. Sincovich, 232 F.3d 200, 205 (4th Cir. 2000); Bradley v. Phelps, 147 Ind. App. 349, 260 894, 898 (1970), cf. Baker v. Wagers, 472 N.E.2d 218, 222 (Ind. App. 1984).
So do not let your opponent get away with creating testimonial exhibits which will be taken back to the jury room and provide unfair emphasis on such testimony. Reports simply aren’t admissible.
I have always thought it is unclear whether Indiana Rule of Evidence (IRE) 615 applies to depositions. IRE 101(C) states:
Rules Inapplicable. The rules, other than those with respect to privileges, do not apply in the following situations:
(1) Preliminary questions of fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104(a).
(2) Miscellaneous proceedings. Proceedings relating to extradition, sentencing, probation, or parole; issuance of criminal summonses, or of warrants for arrest or search, preliminary juvenile matters, direct contempt, bail hearings, small claims, and grand jury proceedings.
Interestingly enough, no mention of depositions is made in the proceedings excluded.
Ind.T.R. 30(C) states in part:
Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of Rule 43(B). *** All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. When there is an objection to a question, the objection and reason therefr shall be noted, and the question shall be answered unless the attorney instructs the deponent not to answer, or the deponent refuses to answer, in which case either party may have the question certified by the Reporter, and the question with the objection thereto when so certified shall be delivered to the party requesting the certification who may then proceed under Rule 37(A).
Ind. T.R. 32(B) states:
Objections to admissibility. Subject to the provisions of Rule 28(B) and subdivision (D)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any depositions or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
* * *
(D) Effect of errors and irregularities in depositions
(3) As to taking of deposition.
(a) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(b) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition. ***
Ind. T.R. 43(B) then reads:
Evidence on motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.
My take away from all of this is that if you want to use the deposition at trial or in connection with a motion for summary judgment, then the rules of evidence would apply. Also, if you do not object to the presence of the expert at the time of the deposition pursuant to IRE 615 the objection is waived because it could have been obviated by the opposing attorney by ordering the expert to leave. If the opposing attorney disagrees then you would have to hope you win the issue at trial or stop the deposition and immediately file a motion to terminate under Ind. T.R. 30(D). As a result, I would think a court would find IRE 615 applicable to a deposition.
That being said, I think having an expert present to aid you in examining another expert would usually be “a person whose presence is shown by a party to be essential to the presentation of the party’s cause” under IRE 615(C). In Ledden v Kuzma, 858 N.E.2d 186 (Ind.Ct.App.2006), the Kuzmas sought a protective order barring Ledden’s expert from attending Ledden’s deposition of the Kuzmas’ expert witness. The Court of Appeals stated:
Under appropriate circumstances, it may be proper for a protective order to be granted barring an expert -or anyone else – from attending the deposition in question. If a party is able to meet the requirements of Trial Rule 26(c)(5), then a protective order would be warranted. But if, as here, a party is unable to provide any particular and specific demonstration of fact in support of the request for a protective order, then there is no reason – based in logic or rule – to bar the expert from attending the deposition.
Generic allegations of prejudice were made in Ledden v Kuzma. A factual demonstration supported by evidence of real harm seems to be required given the holding in Ledden v Kuzma.
Trial is a different thing. The argument for the a separation of witnesses is weaker at the discovery stage since you may need the help of your own expert to pin someone down at the pretrial discovery stage whether investigation is needed. While IRE 615(C) does allow a party to designate a person whose presence is essential to their presentation to be present in the courtroom, this creates practical problems and raises concerns about “fairness in administration” and “the end that the truth may be ascertained and proceedings justly determined.” See IRE 102 Purpose and Construction.
When I had this occur in a trial, I successfully argued that the defense expert is not allow to watch the trial and weigh evidence as this is the sole province of the jury. IRE 702(A) states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Allowing expert to attend the trial and opine is a kin to having a shadow jury. Such a process misleads the jury as to an expert’s true role which is to aid the jury in deciding the case, not supplant them. Trial testimony by the expert could run afoul of Rule 704(B) since the expert would in essence be testifying as to whether a witness (including your expert) testified truthfully by opining after watching all the witnesses testify. Also, Ind.T.R. 26 requires that the basis and opinion of an expert be seasonably disclosed before the trial. An expert’s opinion would change and morph as the trial progressed. The expert, not the jury, would resolve questions of fact, credibility and the weight to be given witness testimony and items of evidence. Such expert testimony could impair or deprive a party of their constitutional right to trial by jury.
So, what do you think?