Category Archives: testimony
While watching a news report on the oppression of people inside of Russia and attempts to control every aspect of their lives, I heard the following quote:
Victor Frankl ~ “Everything can be taken from a man but one thing: the last of the human freedoms — to choose one’s attitude in any given set of circumstances, to choose one’s own way.” March 26, 2013
This quote reminded me of a point I often make to witnesses and clients… you cannot control the questions you are asked or the tone and attitude of the questioner. However, you have absolute control over your own demeanor and how you choose to respond. You can stay polite and calm in the face of harsh and demeaning questioning or you can respond in kind.
If you respond in kind, the jury will forget the fact that the questioner was rude and arrogant, and instead focus on the witness or party’s lack of composure. The questioner will feel empowered and extend his line of attack sensing blood in the water.
On the other hand, if the witness or party remains truthful, polite and calm the questioner will be revealed as an arrogant bully. The questioner will become discouraged and cut short his examination. The battle of wits will be won.
As Sun Tzu notes in the Art of War:
“If your opponent is of choleric temper, seek to irritate him. Pretend to be weak, that he may grow arrogant.”
Their is no greater irritant to a bully than remaining calm and composed. Remind your client or witness of their freedom to choose their attitude and control their demeanor. This advice will empower and cut short abusive questioning at trial or during a deposition.
Depositions are legal proceedings which are not typically officiated by a court officer. During such affairs attorneys can behave quite badly. Such behavior can range from simple rudeness to conduct that borders on criminal conduct such as threats of bodily harm or emotional charges to go outside and handle the matter like a man. Needless to say, you don’t want to be that guy. Only the trial court can legally terminate a deposition for abusive conduct by an attorney. Rule 30(d)(3) of the Federal Rules of Civil Procedure provides that a party may move to terminate or limit a deposition “on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses or oppresses the deponent or party.” If the deposition is terminated you must immediately seek the trial court’s assistance and approval.
This not a course to chart unless it is justified. You and you client can be subject to sanctions and even disciplinary action for improperly terminating a deposition. See Rule of Professional Conduct 3.4. If you guess wrong and do not terminate the deposition properly, you can be responsible for paying the other party’s attorney fees. Smith v. Logansport School Corp., 139 F.R.D. 637 (N.D. Ind. 1991). Here is a famous example of things going south during a deposition courtesy of YouTube:
So be ready if abusive behavior occurs during a deposition. Act quickly and wisely… and remember don’t be that guy.
“Cross-examination is the greatest legal engine ever invented for the discovery of truth.” – John Henry Wigmore
The existence of financial bias is a well established area of cross-examination when dealing with the credibility of witnesses and experts alike. Indiana law is clear that the income of an expert derives from his/her work as an expert is highly relevant and goes directly to bias and prejudice. See Ind.R.Evid. 411, 616; Ind. Pattern Jury Instruction No. 1.09; Brown-Day v. Allstate Ins. Co., 915 N.E.2d 548, 551-52 (Ind. App. 2009), trans. denied; Pickett v. Kolb, 237 N.E.2d 105 (Ind. 1968); Yates v. Grider, (1969) Ind. App. 251 N.E. 2d 846; Kleinrichert v. State, 530 N.E.2d 321 (Ind. App. 1980). As the Indiana Supreme Court stated in Pickett, supra:
It has long been the law in all jurisdictions of which we are aware that a witness may be properly cross-examined with respect to his interest in the litigation in question. He may be cross-examined with reference to his motives, his feelings, friendly or unfriendly towards the parties or other witnesses involved, his employment by either of the parties or some third party, and a contractual relationship with reference to his interest in the litigation and any financial considerations that might have influenced him.
[P]roof of liability insurance in and of itself is not admissible, but such a principle may not be expanded to the extent that it serves as a means of excluding otherwise competent evidence which is relevant to the issues involved in the trial. We do not think that a trial court may arbitrarily exclude otherwise competent and relevant evidence merely on the ground that it will reveal an insurance carrier is involved.
In this case, as previously stated, if a party sees fit to present a witness on his behalf, the opposing party has a right to cross-examine that witness with reference to all his interests in the litigation, including who is compensating him or giving him anything of value which resulted in his being a witness or participating actively in the litigation.
237 N.E.2d at 107-08. The Indiana Supreme Court’s rules trump any statute when the provisions conflict. In re Termination of the Parent-Child Relationship of B.H., 2013 Ind. App. LEXIS 256 (Ind. Ct. App. May 30, 2013). The principle that this rule of law survived the adoption of the Indiana Rules of Evidence was confirmed in Brown-Day, 915 N.E.2d at 551-52. Indiana Rule of Evidence 411 explicitly excepts evidence of bias from the restriction on presenting evidence of insurance. This Rule provides:
Rule 411. Liability Insurance
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control. [Emphasis Added].
Indiana Rule of Evidence 616 recognizes that witnesses are subject to cross examination on topics addressing bias. This Rule provides:
Rule 616. Witness’s Bias
Evidence that a witness has a bias, prejudice, or interest for or against any party may be used to attack the credibility of the witness. [Emphasis Added].
Evidence that a witness has a bias, prejudice, or interest for or against any party may be used to attack the credibility of the witness. The fact that embraces the topic of the Patient Compensation Fund should not prevent such inquiries. By analogy inquiries regarding a juror’s interest in an insurance company is a valid line of inquiry. In the matter of Beyer v. Safron, 84 Ind. App. 512, 151 N.E. 620 (1926), the court stated:
[L]itigants are entitled to a trial by a thoroughly impartial jury, and to that end have a right to make such preliminary inquiries of the jurors as may seem reasonably necessary to show them to be impartial and disinterested. It is a matter of common knowledge that there are numerous companies engaged in such insurance, and that many of the citizens of the state are stockholders in one or more of them. Such citizens may be called as jurors, and if at such time they are such stockholders, or otherwise interested in any of such companies, their pecuniary interest might disqualify them to sit as jurors.
Id. at 621.
Panel members should be able to be questioned regarding their financial interest in the outcome of a medical malpractice case since each of them our participants in the patient compensation fund and are financially impacted by any monies awarded from the fund. The collective impact of favorable plaintiff’s verdicts is not trivial and has a financial impact on panel members. The prohibition on mentioning insurance is not absolute. Under Rule of Evidence 411, evidence that a witness was insured against liability is admissible to prove their “bias” or “prejudice”. While recognizing all of these arguments exist, the Court of Appeals here in Indiana has refused to overturn a trial court’s discretionary decision to exclude such evidence pursuant to Indiana Rule of Evidence 403. This rule leans in favor of admitting such evidence (unlike Rule 608 which deals with evidence of criminal convictions). The attendant prejudice must substantially outweigh the probative value. A trial court’s decision on this issue may only be reversed for an abuse of that discretion to n deciding this issue. In Tucker v. Harrison, 973 N.E.2d 46 (Ind. App. 2012) upheld the trial court’s decision to exclude such evidence noting:
Any specific bias on the part of the three members of the medical review panel in this case would certainly be relevant. See Ind. Evidence Rule 616 (“For the purpose of attacking the credibility of a witness, evidence of bias … of the witness for or against any party to the case is admissible.”). Each member of the review panel signed the required oath. Dr. Michelle Murphy, one of the review panel members, testified at trial that she signed the oath, that she took the oath seriously, and that she had no bias for either Tucker or Dr. Harrison when she considered the evidence and gave her opinion. (citations omitted). Dr. Margaret Miser, also a member of the review panel, also testified that she took the oath, honored it, and complied with it in her work on the review panel. [Emphasis Added].
Id. at 55. Alas, if an oath guaranteed truth there would be no need for cross-examination or even a trial for that matter. Bias can occur on an unconscious level and is not cured by being placed under oath. If not, why is it so difficult to get local doctors to assist and go on the record in medical malpractice case against another doctor? The Court of Appeals went on to observe:
[The Plaintiff’s] proffered evidence merely speculates through Dr. McLaughlin’s expected testimony that every doctor in Indiana—all of whom are required by law to participate in the Patient’s Compensation Fund and to serve as review panel members-have such an interest in limiting their financial exposure by limiting payouts from the Patient’s Compensation Fund that they would render opinions based on such interest. However, [the Plaintiff] has not shown that Dr. McLaughlin is qualified to testify about system-wide bias, if any exists, and she offers no evidence of the amount of the financial exposure doctors allegedly face from which the likelihood of such skewed opinions could be assessed. By statute, the financial exposure could be as little as $100 per year. See Ind.Code § 34–18–5–2(e). (Emphasis Added).
Id. at 55. The Court of Appeals then held that:
When balanced against the prejudicial effect of allowing evidence of professional liability insurance, the potential for bias in this case is so remote as to warrant exclusion. ***The trial court did not clearly err in excluding the proffered bias testimony.
Id. Ultimately the issue remains one for the trial court to resolve in its discretion. In order to succeed in present such evidence of bias, quantifying the amount of this contribution to the patient compensation fund by each doctor may be necessary to overcome a claim of unfair prejudice by the defense. The size of this contribution by a panel member may well vary depending upon the area of practice, the doctor’s risk history and the true number of practitioner’s that participate in the Fund. See the Schedule below and the dollar amounts of the Compensation Fund surcharge by classification of specialties found in Indiana’s Administrative Code:
These classes breakdown as follows in terms of areas of practice per 760 IAC 1-60-3 (Rule 60):
760 IAC 1-60-3 List of physician specialty classes
Authority: IC 34-18-5-2
Affected: IC 34-18-5-2
Sec. 3. The list of physician specialty classes required by IC 34-18-5-2 is as follows:
Indiana Department of Insurance
Patient’s Compensation Fund
Physician Class Plan
ISO Code Specialty
80001 Resident Nonmoonlighting
80221 Resident Moonlighting (No ER)
80230 Aerospace Medicine
80231 General Preventive Medicine – No Surgery
80234 Pharmacology – Clinical
80236 Public Health
80240 Legal Medicine and Forensic Medicine
80249 Psychiatry (Including Child)
80251 Psychosomatic Medicine
80256 Dermatology – No Surgery
80263 Ophthalmology – No Surgery
80266 Pathology – No Surgery
ISO Code Specialty
80233 Occupational Medicine
80235 Physical Medicine and Rehabilitation
80237 Diabetes – No Surgery
80238 Endocrinology – No Surgery
80239 Family Practice – No Surgery
80241 Gastroenterology – No Surgery
80242 General Practice – No Surgery
80243 Geriatrics – No Surgery
80244 Gynecology – No Surgery
80245 Hematology – No Surgery
80246 Infectious Disease – No Surgery
80247 Rhinology – No Surgery
80252 Rheumatology – No Surgery
80255 Cardiovascular Disease – No Surgery
80257 Internal Medicine – No Surgery
80258 Laryngology – No Surgery
80259 Neoplastic Disease – No Surgery
80260 Nephrology – No Surgery
80261 Neurology (Including Child) – No Surgery
80262 Nuclear Medicine
80264 Otology – No Surgery
80265 Otorhinolaryngology – No Surgery
80267 Pediatrics – No Surgery
80268 Physicians (Not Otherwise Classified) – No Surgery
80269 Pulmonary Disease – No Surgery
80420 Family Physicians – No Surgery
ISO Code Specialty
80223 Resident Moonlighting (with ER)
80253 Radiology – No Surgery
80280 Radiology – Minor Surgery
80282 Dermatology – Minor Surgery
80289 Ophthalmology – Minor Surgery
80292 Pathology – Minor Surgery
80425 Radiation Therapy – Not Otherwise Classified
80431 Shock Therapy
ISO Code Specialty
80109 Physicians – No Major Surgery
80114 Surgery – Ophthalmology
80132 Physicians (Not Otherwise Classified) – Minor Surgery
80172 Physician (Not Otherwise Classified) – No Major Surgery
80270 Rhinology – Minor Surgery
80271 Diabetes – Minor Surgery
80272 Endocrinology – Minor Surgery
80273 Family Practice – Minor Surgery
80274 Gastroenterology – Minor Surgery
80275 General Practice – Minor Surgery
80276 Geriatrics – Minor Surgery
80277 Gynecology – Minor Surgery
80278 Hematology – Minor Surgery
80279 Infectious Diseases – Minor Surgery
80281 Cardiovascular Disease – Minor Surgery
80283 Intensive Care Medicine – Minor Surgery
80284 Internal Medicine – Minor Surgery
80285 Laryngology – Minor Surgery
80286 Neoplastic Diseases – Minor Surgery
80287 Nephrology – Minor Surgery
80288 Neurology (Including Child) – Minor Surgery
80290 Otology – Minor Surgery
80291 Otorhinolaryngology – Minor Surgery
80293 Pediatrics – Minor Surgery
80294 Physicians (Not Otherwise Classified) – Minor Surgery
80421 Family Physicians (GP) – Minor Surgery – No OB
80422 Catheterization, Not Otherwise Classified
80424 Emergency Medicine – No Surgery
ISO Code Specialty
80000 Family Practice – with OB
80115 Surgery – Colon and Rectal
80117 Surgery – GP (Not Primarily Engaged in Surgery)
80145 Surgery – Urological
80151 Surgery – Anesthesiology
80163 Radiation Therapy – Employed Physicians or Surgeons with Major Surgery
80428 Physicians – Minor Invasive Procedures – Myelography
80434 Physicians – Minor Invasive Procedures – Lymphangiography
80437 Physicians – Minor Invasive Procedures – Acupuncture
80440 Physicians – Minor Invasive Procedures – Laparoscopy
80443 Physicians – Minor Invasive Procedures – Colonoscopy
80446 Physicians – Minor Invasive Procedures – Needle Biopsy
80449 Radiopaque Dye Injection
ISO Code Specialty
80102 Emergency Medicine – No Major Surgery
80103 Physicians – Surgery – Endocrinology
80104 Physicians – Surgery – Gastroenterology
80105 Physicians – Surgery – Geriatrics
80106 Surgery – Laryngology
80107 Physicians – Surgery – Neoplastic
80108 Physicians – Surgery – Nephrology
80158 Surgery – Otology
80159 Surgery – Otorhinolaryngology
80160 Physicians – Surgery – Rhinology
80419 Family or General Practice – Major Surgery
ISO Code Specialty
80141 Surgery – Cardiac
80143 Surgery – General Not Otherwise Classified
80155 Surgery – Plastic – Otorhinolaryngology
80156 Surgery – Plastic Not Otherwise Classified
80157 Surgery – Emergency Medicine
80166 Surgery – Abdominal
80167 Surgery – Gynecology
80169 Surgery – Hand
80170 Surgery – Head and Neck
ISO Code Specialty
80144 Surgery – Thoracic
80146 Surgery – Vascular
80150 Surgery – Cardiovascular Disease
80154 Surgery – Orthopedic
80171 Surgery – Traumatic
ISO Code Specialty
80152 Surgery – Neurology (Including Child)
80153 Surgery – Obstetrics/Gynecology
80168 Surgery – Obstetrics
The facts the Indiana Court of Appeals had to assume given the underdeveloped record before the trial court, substantially underestimated the amount of money contributed by doctors and other healthcare providers on a yearly basis. While by statute, the financial exposure could be as little as $100 per year. See Ind.Code § 34–18–5–2(e). This is not the reality. Depending on the area of practice, the actual dollar amounts contributed by healthcare providers are from 2,222% to 25,186% higher than the $100 annual fee assumed by the Court of Appeals! The actual potential for bias when viewing the real numbers is neither remote nor trivial. Such evidence of financial bias on the part of Panel Members should be admissible and evaluated by the finder of fact. The probative value of such evidence is high and is not substantially outweighed by the risk of unfair prejudice.
1. Tendencies of your expert: If you can obtain and read past depositions of your
expert to see not only what type of questions are asked but how he reacts. Does he ramble or
argue? Does he fail to listen to the question or dodge it? Is he argumentative or polite and
professional? You may want to run through some questions, especially problems so your expert
is ready to address them. If the expert is new to the practice, I would video tape the questioning
so the expert can see how he reacts objectively evaluate his performance.
2. Do not hide bad evidence from your expert, deal with it. If you hide bad
evidence from your expert, you will expose your expert to potential embarrassment. He may
even be force to abandon your side of the case because he was not prepared for what was coming
and unwittingly made imprudent concessions earlier in the deposition.
3. What does the expert consider authoritative as a learned treatise? This will
be asked. How will he answer the question? If at all possible, avoid doing the deposition in the expert’s office. It will only provide bookshelves full of ideas for authoritative materials to ask
and cross examine your expert about at trial
4. Screen your expert. Make sure you have already screened your expert’s curriculum vita in
advance for any bluster or bull not supported by the facts. Hopefully, this was done before you ever hired your expert.
5. Obtain Historical Medical Records. The prior medical history of a Plaintiff can
seriously undermine a case’s value and the client’s credibility. It is important to obtain all significant prior medical history from a client. If you don’t, the defense attorney will. Without a full medical history, a client is prone to make misstatements and create fertile ground for purposes of impeachment at the time of trial. Likewise, expert witnesses will be unable to address and deal with any potential weaknesses you might have as a result of any pre-existing medical condition or prior injury. While it is tempting to limit your pretrial production of records to those postdating the injury, it is better to do the investigation yourself ahead of time.
6. Prepare a Medical Chronology – A detailed medical chronology prepared ahead
of their deposition, will give you a means to identify and refresh the expert’s memory regarding past illnesses and injuries, and avoid making misstatements at the time of the deposition, or worse, at the time of trial. In addition, by reviewing the past medical chronology with your expert, you can address responses to the resolution of prior symptoms and/or problems.
7. Prior Lawsuits and Claims – It is important to promptly identify any prior
litigation your expert may have been involved in as either a litigant or as a witness. The prior proceedings can create a ready resource of impeachment through the use of pleadings, discovery responses and depositions. Failure to identify such easily verifiable information can also make it appear as if your expert is a liar. The prior litigation also provides background information on your expert that could lead to surprises.
8. Compound Questions – Compound questions are questions, which incorporate two questions in one. They are very deceptive and dangerous because a yes or no answer can be interpreted as an affirmative response to the underlying predicate. For example, “Do you beat your wife only on Tuesdays and Thursdays?” is actually two questions in one. The first question is, “Do you beat your wife?” and if yes, is it only on Tuesdays and Thursdays? Make sure your expert can identify an undisclosed predicate to a question which makes it compound in case you fail to object.
9. Summary Questions – Another classic approach to the compound question is to
summarize an expert’s prior testimony, and then ask at the tail end a yes or no question. Experts often focus only on the yes or no question, and forget that by answering the question without objection or clarification they are affirming the entire scenario outlined in the question. While you, as an attorney, should object to such questions, it is important to educate the expert on these problems as well, in case you fall asleep at the switch.
10. Box Questions – Questions in Absolute Terms – Questions cast in absolute
terms can also be a problem. Opposing counsel wants to limit your expert’s basis for his opinions and show that he overlooked or ignored some important facts. If he is attempting to exhaust your
expert’s knowledge of the facts on a topic, your expert should indicate “that is all I can recall at
this time.” This leaves an opening to refresh your expert’s memory and supplement or correct the answer through the errata sheet. Whenever an attorney uses such terms as, “Do you always” or, “Have you never,” they are attempting to lock your expert in absolute terms. There is nothing wrong with being absolutely sure, you just want to make sure that that is, in fact, the case. If there are exceptions, then the expert needs to avoid answering such questions in the affirmative. On the other hand, defense attorneys will use such absolute terms as a means of unnerving an expert and backing them off of their testimony. The point is, make sure if you answer in absolute terms, that you’re absolutely correct.
11. Milk-Toast Answers – The flip side of this is to water down answers with
qualifiers such as, “I think,” “I believe,” or, “In my opinion,” when you actually know the facts. Make sure your expert avoids using such terminology. It is better to indicate that you don’t know or recall than to guess or speculate. Once again, the primary rule is to answer truthfully and accurately.
12. Do not exaggerate – Don’t take a good case, try to make it a great case, and turn
it into a bad case. Do not be an advocate. Be an expert.
13. Remember you are a professional. Don’t respond in kind to impolite or rude
comments by opposing counsel. The only thing a witness has absolute control over is their behavior and demeanor. By emphasizing this point with your expert, you can both empower and relax them. No matter how rude or aggressive the other attorney is, it’s important for the expert to remain calm and composed. By doing this, the deposition will typically be shorter. When an opposing attorney senses he has drawn blood, he will simply bore in with more of the same. An expert can tactically overcome this by simply remaining calm. Likewise, the expert needs to be cautioned to avoid any sarcasm or insincere solicitous comments.
14. Identify and explain what items which are privileged – Another classic
question to unnerve a witness t that attorneys will often use is, “Have you talked too anybody about this case?” Sometimes, a witness will think that they’ve done something wrong by discussing their testimony in advance. The expert should be put at ease that there is nothing wrong with preparing for their deposition or meeting with you in advance. In fact, most jurors expect attorneys to meet with their witnesses, in order to properly prepare for trial or a deposition. Discussions with counsel are privileged as work product because they are communication with counsel. See Fed. R. Civ. P. 26(b)(4)(C). If the question is posed by opposing counsel and you fall asleep at the switch, you want to make sure that your expert seeks a clarification as to whether the attorney is, “Asking for information discussed with counsel.” If your expert has discussed the case with other persons, you want to identify this well in advance of the deposition. Some experts, especially teaching experts, will discuss pending cases during their lectures. I can recall one case where this occurred and the expert was impeached at trial with tape recordings of his lecture with devastating effect. Loose lips sink both ships and cases.
15. Review all evidentiary foundations – You should review the appropriate
foundational requirements for the admission of any records, tests, or other analysis which is not stipulated to by the opposing party. Remember under Rule of Evidence 703, your expert can
consider matters outside the evidentiary record at trial in reaching his opinion.
16. Standard of proof or level of confidence required – this distinction has
somewhat dissipated. However, a number of judges are still requiring use of the magic words.
Typically at the beginning it make sense to asked that you expert give his opinion in the case
based upon a reasonable degree of medical or scientific probability unless instructed otherwise.
Caution your expert to avoid using the phrase “possible” since it is legally meaningless.
17. Reliance on materials outside of the court record. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing. Experts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the
field. Federal Rule of Evidence 703. Typically, I would ask the expert ‘if in reaching his opinions and conclusions in this case, did he use only materials reasonably relied upon by persons in his field?
18. The Subpoena Duces Tecum Trap – Make sure any subpoena is dealt with well
in advance of the deposition. You should personally review with your expert all items sought
and insure nothing is “lost” or destroyed which is in existence at the time the subpoena is issued.
A privilege log should be prepared for any items withheld and a motion for protective order
sought if agreement cannot be reached on how to handle the subpoena. Blanket claims of privilege are not favored. The party seeking to avoid discovery has the burden of establishing the
essential elements of the privilege being invoked. United States v. Lawless, 709 F.2d 485, 487(7th Cir.1983). The claim of privilege must be made and sustained on a question-by-question
or document-by-document basis. Id., citing United States v. First State Bank, 691 F.2d 332, 335(7th Cir.1982); Matter of Walsh, 623 F.2d 489, 493 (7th Cir.1980), cert. denied, 449 U.S.
994, 101 S.Ct. 531, 66 L.Ed.2d 291. Spoliation of evidence by your expert in response to a subpoena can lead to sanctions, a contempt citation and an adverse instruction to the jury. Spesco, Inc. v. General Elec. Co., 719 F.2d 233, 239 (7th Cir. 1983); see also Adkins v. Mid- America Growers, Inc., 141 F.R.D. 466, 473 (N.D. Ill. 1992) (“In cases where evidence has been
intentionally destroyed, it may be presumed that the materials were relevant.”).
19. Give the shortest accurate answer… Remember a deposition is not a
conversation – The purpose of a discovery deposition is to learn as much as one can about the
opposing expert. When answering a question give the shortest accurate answer. Explain only
when asked. Do not ramble. Repeat after me: A deposition is not a conversation. A deposition
is not a conversation. A deposition is not a conversation!
Run through these points with your expert so he can avoids the “traps” of litigation and not end up stuck in the “sand.”
1. Review all evidentiary foundations. You should review the appropriate
foundational requirements for the admission of any records, tests, or other analysis which is not
stipulated to by the opposing party. Remember under Rule of Evidence 703, your expert can
consider matters outside the evidentiary record at trial in reaching his opinion.
2. Standard of proof or level of confidence required. This distinction has
somewhat dissipated. However, a number of judges still require the use of the “magic words.”
Typically, at the beginning, it makes sense to ask that your expert give his opinion in the case
based upon a reasonable degree of medical or scientific probability unless instructed otherwise.
Caution your expert to avoid using the phrase “possible” since it is legally meaningless.
3. Reliance on materials outside of the court record. The facts or data in the
particular case upon which an expert bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing. Experts may testify to opinions based on
inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the
field. Federal Rule of Evidence 703. Typically, I would ask the expert ‘If in reaching his opinions and conclusions in this case, did he use only materials reasonably relied upon by persons in his field?
4. Role as an educator/not an advocate. KISS—Keep it simple, stupid! Avoid
technical terms. Use models or diagrams whenever possible. Above all, make it interesting! The expert should be enlightening, not boring! In this regard, less is more. Get to the point early. The expert needs to be an educator, not an advocate. That’s your job.
5. Professional demeanor. Make sure your expert has the knowledge and control
to avoiding taking the bait! No matter how the opposing attorney acts, your expert must stay
polite and professional. Avoid sarcasm or insults. Credibility will ultimately be lost.
6. Review of demonstrative evidence. If you are going to use charts, models or
diagrams, make sure they are properly disclosed in advance, and if possible included with your
expert’s report. Likewise, summaries under Rule 1006 need to be produced in advance.
7. In court demonstrations or “experiments”. Make sure you practice them and
they will definitely work. You don’t want to hear, “If it doesn’t fit, you must acquit.”
8. Review prior materials for any mistakes or errors. Look one last time for
problems. Deal with any mistakes or error on direct, and deal with any shortcomings honestly.
You will gain credibility and avoid the sting of these topics on cross-examination.
9. Absent Subpoena Duces Tecum, limit materials brought to court. Bring only
those items which have previously been produced. Be ready to answer questions regarding
compensation paid, and hours of work spent. Remind your expert that he is paid for his time, not
10. Contrast and compare expert’s qualifications with those of any opposing
expert. Show what he brings to the table that the other expert is missing, whether it is in the way
of experience, time spent, or knowledge. Show the jury why your expert is the better guide.
11. Cover adequacy of facts included in any hypothetical questions. If you plan
or may ask a hypothetical question, make sure you review the relevant factors in advance of trial
with your expert so you are both on the same page. Write out your question so you are
consistent in the way you ask it.
12. Likely tactics of opposing counsel. Know your opponent. In the seminal book, “
The Art of War” Sun Tzu advises:
“If you know the enemy and know yourself, you need not fear the
result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”
Ask around and learn your opponent as well as yourself and your own case, and you, too, will
have nothing to fear.
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 opposing expert.
2. Being penny-wise and pound-foolish. Do not save pennies and shortcut what
needs to be done at the cost of your case! Go through the cost and benefits of what needs to been
done early on and decide whether it makes sense to pursue your case through trial. For example,
product liability cases and medical malpractice cases are very expensive to litigate. By getting an expert involved early on, you can assess whether the case merits the time and money required
to be successful. If you defer expert involvement, you may well incur expenses and invest time that was better spent on another case.
3. Obtaining the wrong type of expert. Don’t bring a knife to a gunfight! Make sure you understand the science and technical issues well enough to properly select and screen your expert.
4. Hiring an inexperienced expert. Experience in the courtroom matters. It holds true for attorneys and experts alike. Get an expert who “has been there and done that.” This is not the place to cut costs!
5. Failing to check an expert’s background. You know your opponent will do so,
so why wouldn’t you check your expert’s background? It’s cheaper to check out your expert
than to have to pay for two experts or lose your case because of problems which could have been
6. Buying a Volkswagen when you need a Mercedes. Get the person who fits the
job, not just your budget! As a Plaintiff’s attorney you will lose your case, disappoint a client
and cost yourself money which you can never recover. As a defense attorney, you risk losing a case and a book of business. If the insurer does want to do it right, then they better be ready to pay, or overpay the claim.
7. Forgetting that “Garbage in equals garbage out”. You must provide your
expert with solid evidentiary material or rock solid assumptions if he is opining on ahypotheticalquestion. If your incoming information is not reliable or ascertainable, you are lost from the
8. Failing to educate yourself. You cannot hire the right expert if you don’t
understand the area of expertise involved. One excellent source to check is the Reference
Manual on Scientific Evidence 3rd Edition published by the Federal Judicial Center, which
covers all of the common areas of forensic and scientific analysis that usually arise in civil or
criminal litigation. Here is the link:
9. Underestimating the value of a good communicator. First and foremost, your
expert must be a good communicator and educator. No one will care how smart he is unless they
can understand and connect with him as a person. He has to be interesting and make the jury
want to lean forward and learn more – not take a nap! As Theodore Roosevelt quipped, “No one
cares how much you know, until they know how much you care.”
10. Lacking clarity on the issue in dispute and the theme of your case. What is your case’s theme? How does your expert move your case forward? Can you phrase the
technical issues so they meld with your broader themes in the case? Don’t forget the forest for
(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 testifying.
Surprisingly, even though they had been around for years as experts no one had ever
checked out their background to see if they were legitimate. In one instance I found that
the expert not only wasn’t a professional engineer, but he had never even completed his
degree in engineering! At that time, I used a private investigator to dig up this information. Today you check such things yourself online.
(b) Internet search of expert. Do Google, Bing, Google Scholar, Yahoo
searches of your expert using the following format: “ EXPERT NAME” AND “keywords”. I use key words and phrases such as “ testimony”, “ppt”, “lawsuit”, “pdf”, “
lawsuit”, “deposition”, “You Tube”, “video”, “MIL”, “motion in limine”, “motion to exclude”, “daubert”, “frye”, “conference presentation”, “author”, “dissertation”, “thesis”,
“capstone”, “expert witness” etc. You can also do a full legal name search using the case
law filter to see if you can find any lawsuits.
(c) Expert databanks. Organizations, attorney associations AAJ, State Trial
Lawyers Association, professional list serves, TrialSmith, Westlaw, Lexus-Nexus, often
provide either searchable databases or bulletin boards where information can be electronically posted for inquiry and response. Some can be used at no cost, while others
charge a fee or subscription for searches.
(d) Search of reported cases. I would examine both civil and criminal court
dockets, PACER, Westlaw, Lexus-Nexus, electronic court records. Your expert may have
testified or could have been excluded as a witness. Does he have convictions? Does he
have legal or financial problems?
(e) Obtain and check references. Your check should include calls to attorneys listed by your expert as well as attorneys discovered in published cases.
(f) Verify licensing. Is your expert really licensed or certified? Check– it
should be free. Has he had any disciplinary actions taken against his professional licensing? How will you handle this at trial?
(g) Review website and advertising of expert. What does he say? Are
articles attached or linked to the website? Check out his CV and terms of engagement as
(h) Review social media of expert. Does the expert have a business or
personal page on YouTube, Facebook, Twitter, LinkedIn, etc. What articles, videos, or
comments has he posted?
(i) Eyeball test. What kind of appearance does the expert make? Is he goofy
looking? Is he sloppy or slovenly in his appearance? Is he well spoken? Does he make
good eye-contact? Does he fit the part? Does he have charisma or personality? Would
you want him as your teacher? That is what he will be doing for you: teaching the jury
about your case.
(j) Excluded. Has your expert ever been excluded or admitted to testify over the
objection of opposing counsel? He should know this answer and be able to give you
past hearing transcripts, legal briefs and rulings.
You will be surprised by how much exaggeration and unsubstantiated bragging is contained in an expert’s CV. Find your expert’s problems before you spend your money and risk your case by placing it in the hands of the wrong “expert.”
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 fact in issue under Rule
702 of the Federal Rules of Evidence. To do this, you need to look at your expert’s qualifications
in each of the following areas:
(e) Prior Cases
(f) Certifications/Professional Memberships
Does each of these areas satisfy the evidentiary requirements under the rules of evidence? Look
for prior cases in your jurisdiction if you think there is a question. For example, a psychologist
or chiropractor may not be able to establish medical causation as this is outside of their area of
expertise. Check your local jurisdiction’s law. You may need a Doctor of Osteopathic Medicine
or a Doctor of Psychiatry instead.
2. Reliability & Reliance. Others will be discussing in greater depth the issues of
admissibility of experts; however, this is something that needs to be addressed before you
commit your money to any expert. Expert scientific testimony is required to establish and
explain the complex causal relationship between an event and the resulting injury or damage. It is also required for matters requiring special expertise in areas such as medicine, engineering, accounting, psychology, economics, statistics, forensic sciences (DNA analysis, handwriting analysis, fingerprinting, tool mark examinations, ballistics, entomology, pathology, etc.).
In evaluating the admissibility of such evidence, the trial court must make some
preliminary determinations when called up by the parties to do so, which are controlled by the rules of evidence. This is the minimum threshold which must be met before the trial court will
allow the jury to consider the evidence. I recommend that you know the law of your jurisdiction and preferences of your trial court:
(a) Frey Test v. Daubert Analysis. In federal court, the Daubert test is
utilized in evaluating the admissibility of evidence. See Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Daubert
court specified a non-exhaustive list of factors that may be relevant in assessing the
reliability of scientific evidence, including:
1. Whether the theory or technique can be and has been tested?
2. Whether the theory has been subjected to peer review and publication?
3. Whether there is a known or potential error rate? and
4. Whether the theory has been generally accepted within the relevant field of
Daubert, 509 U.S. at 593–94, 113 S.Ct. 2786; Kubsch v. State, 784 N.E.2d 905, 921 (Ind. 2003). Federal case law interpreting the Federal Rules of Evidence is not binding upon thedetermination of state evidentiary law. Regarding Daubert, the concerns driving coincide with the requirement of Indiana Rule of Evidence 702(b) that the trial court be satisfied of the reliability of the scientific principles involved. However, while Daubert may be instructive and helpful, it is not controlling. State Auto. Ins. Co. v. DMY Realty Co., LLP, 977 N.E.2d 411 (Ind. Ct. App. 2012) (Daubert factors may be helpful in determining whether scientific principles are reliable, but Indiana has not mandated its application).
In order for a witness to qualify as an expert:
1. The subject matter [must be] distinctly related to some scientific field, business
or profession beyond the knowledge of the average lay person; and
2. The witness [must be] shown to have sufficient skill, knowledge or experience
in that area so that the opinion will aid the trier-of-fact.
Bacher v. State, 686 N.E.2d 791, 800 (Ind. 1997). The proponent of expert testimony bears the
burden of establishing the foundation and reliability of the scientific principles and tests upon
which the expert’s testimony is based. McGrew v. State, 682 N.E.2d 1289, 1290 (Ind. 1997).
Once the admissibility of the expert’s opinion is established under Rule 702, “then the accuracy, consistency, and credibility of the expert’s opinions may properly be left to vigorous cross-
examination, presentation of contrary evidence, argument of counsel, and resolution by the trier-of-
fact.” Bennett v. Richmond, 960 N.E.2d 782, 786–87 (Ind. 2012) (quotation omitted).
In determining whether expert testimony is reliable, the trial court acts as a “gatekeeper” to ensure that the expert’s testimony rests on a sufficiently reliable foundation and is relevant to the
issue at hand so that it will assist the trier-of-fact. Wallace v. Meadow Acres Manufactured Hous., Inc., 730 N.E.2d 809, 812 (Ind. Ct. App. 2000), trans. denied. “When faced with a proffer of expert
scientific testimony, the court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue.” Hannan v. Pest Control Servs., 734 N.E.2d 674, 679 (Ind. Ct. App. 2000), trans. denied.
Here in Indiana for example, there is no specific test or set of factors which must be considered in order to satisfy Evidence Rule 702(b), but some relevant considerations include whether the theory or technique can be empirically tested, whether it has been subjected to peer review and publication, and whether it has gained widespread acceptance. Id. at 679–80.
Ultimately, deciding whether expert testimony is admissible is a matter within the discretion of the trial court. Wallace, 730 N.E.2d at 812. A trial court’s decision to exclude evidence will be
reversed only if that decision is clearly against the logic and effect of the facts and circumstances before the Court, or the reasonable, probable and actual deductions to be drawn from the evidence. Id. There is a presumption that the trial court’s decision is correct, and the burden is on the party challenging the decision to persuade the appellate court that the trial court abused its
discretion. Bennett, 960 N.E.2d at 786. Stated another way, a trial court’s determination regarding the admissibility of expert testimony under Rule 702 is discretionary and will be reversed only for abuse of that discretion.
See Bennett , 960 N.E. at 786-787 (held psychologist was qualified to opine that rear-end automobile accident caused motorist to suffer traumatic brain injury); TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 216 (Ind. 2010). The Indiana Supreme Court has instructed trial
courts to consider the general principles and general methodology underlying the reliability of an expert’s testimony, leaving the accuracy, consistency, and credibility of the testimony to be determined by the trier-of-fact after testimony has been subjected to the adversarial process at trial. Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 461 (Ind. 2000). By requiring trial courts to be satisfied that expert opinions will assist the fact-finder and that the underlying scientific principles are reliable, Rule 702 guides the admission of expert scientific testimony. Id.
In other words, the general principles and general methodologies underlying the expert’s testimony are to be examined by the trial court, but not every aspect of the expert’s testimony as might occur in federal court under Daubert.
In evaluating the admissibility of evidence under Rule 702, a distinction is sometimes made between expertise that is described as “scientific” as opposed to “technical” in nature. For example, other jurisdictions have analyzed firearms tool mark evidence as something other than
“scientific.” See United States v. Willock, 696 F.Supp.2d 536, 571 (D.Md.2010) (“While … it may be debatable whether [firearms tool mark identification evidence] is ‘science,’ it clearly is
technical or specialized, and therefore within the scope of [Federal Evidence] Rule 702.”).United States v. Glynn, 578 F.Supp.2d 567, 571 (S.D.N.Y.2008) (recognizing Kumho Tire’s applicability to firearm identification evidence); United States v. Monteiro, 407 F.Supp.2d 351, 372 (D.Mass.2006) (“Based on the factors outlined in Daubert and Kumho Tire, the Court concludes that the methodology of firearms identification is sufficiently reliable.”); United States v. Green, 405 F.Supp.2d 104, 118 (D.Mass.2005) (observing that firearms identification is “not traditional science” and that Kumho Tire extends the Daubert standard to the case). Firearm identification evidence straddles the line between testimony based on science and experience. Monteiro, 407 F.Supp.2d at 365.
Firearms tool mark comparison is similar to other observational comparisons of physical characteristics which have been found to be “on the margins of testimony governed by Rule of Evidence 702(b) as expert scientific testimony.” West v. State, 755 N.E.2d 173, 181 (Ind. 2001)(assessing shoeprint comparison and identification). See also Carter, 766 N.E.2d at 381 (describing bite mark identification as “ ‘simply a matter of comparison of items of physical evidence to determine if they are reciprocal’ ”) (quoting Niehaus v. State, 265 Ind. 655, 359 N.E.2d 513, 516 (1977)); McGrew, supra, 682 N.E.2d at 1292 (citing with approval the trial court’s evaluation of hair comparison analysis as “not the traditional scientific evaluation” but
rather “simply a person’s observations under a microscope”).
In order to successfully get expert testimony into evidence, the following foundational
prerequisites must be satisfied:
1. The opinion offered must be one that in fact requires expertise to render it,
2. The witness must be qualified as an expert by knowledge, skill, experience,
training, or education to render such an opinion,
3. The expert testimony must help the trier of fact to understand the evidence or
determine a fact in issue, and
4. The expert testimony must rest upon reliable scientific principles.
In terms of the expert’s qualifications, you need to cover:
1. His education and training that qualifies him to act as an expert,
2. Certifications and testing that he has undergone in his chosen field of expertise,
3. Work experience relevant to his analysis and opinions, and
4. Competence to perform any tests or analysis used.
In establishing the reliability of the underlying scientific principles, you should look firstfor other court decisions which have accepted the methodology as reliable. If there are none, then you will probably need to turn to your own expert and present the court with established texts, journal articles, or other accepted learned treatises in the area in order to persuade the court of its
(b) Expert’s experience in similar cases. As mentioned earlier, your expert
may have been put through his paces in earlier cases dealing with the same or similar
topic. Experts often times retain copies of these pleadings to ensure that counsel in later
cases is able to effectively establish the admissibility of their testimony and the reliability
of their analysis. So, check with your expert regarding his past experience.
(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.