Category Archives: Trial Advocacy
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.
1. Compliance with Federal Rule of Civil Procedure 26. This probably is a good
place to start. The Rule provides in pertinent part as follows for witnesses hired in anticipation
(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule
26(a)(1), a party must disclose to the other parties the identity of
any witness it may use at trial to present evidence under Federal
Rule of Evidence 702, 703, or 705.
Regarding reports, the Rule goes on to state:
(B) Witnesses Who Must Provide a Written Report.
Unless otherwise stipulated or ordered by the court, this disclosure
must be accompanied by a written report—prepared and signed by
the witness—if the witness is one retained or specially employed to
provide expert testimony in the case or one whose duties as the party’s employee regularly involves giving expert testimony.
The report must contain:
(i) A complete statement of all opinions the witness will
express and the basis and reasons for them;
ii) The facts or data considered by the witness in forming
(iii) Any exhibits that will be used to summarize or support
(iv) The witness’s qualifications, including a list of all
publications authored in the previous 10 years;
(v) A list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
(vi) A statement of the compensation to be paid for the study
and testimony in the case.
As to those witnesses who are typically skilled witnesses or fact witnesses with specialized or
technical knowledge, it states:
(C) Witnesses Who Do Not Provide a Written Report. Unless
otherwise stipulated or ordered by the court, if the witness is not
required to provide a written report, this disclosure must state:
(i) The subject matter on which the witness is expected to
present evidence under Federal Rule of Evidence 702, 703, or
(ii) A summary of the facts and opinions to which the witness
is expected to testify.
The timing of these disclosures is typically outlined in the Case Management Plan as noted in the
(D) Time to Disclose Expert Testimony. A party must make these
disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:
(i) At least 90 days before the date set for trial or for the case
to be ready for trial; or
(ii) If the evidence is intended solely to contradict or rebut
evidence on the same subject matter identified by another
party under Rule 26(a)(2)(B) or (C), within 30 days after the other party’s disclosure.
(E) Supplementing the Disclosure. The parties must supplement
these disclosures when required under Rule 26(e).
Do not forget the obligation to seasonably supplement your expert responses!
This obligation is continuing and requires no additional request by the opposing party.
2. Narrative of facts versus summary of materials reviewed.
Narrative formats are time consuming and subject your expert to attack if he misstates or
misinterprets a record. It also poses problems when there are conflicts in the evidentiary record
that have to be resolved by the jury. Providing a factual summary does require your expert to
review and analyze the record and shows that he has considered all relevant evidence. This
process also better prepares the expert to testify and draft reports may expose gaps in your
expert’s knowledge before final conclusions are reached. However, ultimately the documents are
the best evidence, and listing the items is both cheaper and avoids the pitfalls associated with
summarizing voluminous records.
3. Oral reports versus written reports. Early reports should probably be made
verbally. A summary of findings can be made by counsel in his notes which is protected under
the work product privilege. Once the record matures and the facts are clear, reports should be
considered depending on the requirements of your jurisdiction.
4. The problem with draft reports. Such reports only pose a problem if
discoverable. In federal court only the final draft is discoverable. Check your state law on this
topic to see if it differs.
5. Communications with expert and the work product privilege.
Such communications only pose a problem if discoverable. In federal court only correspondence
containing assumptions of fact or which outline the factual basis for the expert’s opinion are
discoverable. Check your state law on this topic to see if it differs.
Working with your expert on providing a report that is accurate, complient, clear and concise is critical. This checklist should help.
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.
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 frequently have been unduly prolonged . . . By lengthy objections and colloquy” and that objections “ordinarily should be limited to those . . . grounds that might be immediately obviated, removed, or cured, such as to
the form of a question”). Rule 30(c)(2) provides:
Objections. An objection at the time of the examination—whether
to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
The Notes to the Advisory Committee for the Amendments of 1993 state that “[w]hile objections
may, under the revised rule, be made during a deposition, they ordinarily should be limited to
those that under Rule 32(d)(3) might be waived if not made at that time, i.e., objections on
grounds that might be immediately obviated, removed, or cured, such as to the form of a question or the responsiveness of an answer.” Rule 32(d)(3)(A) & (B) state specifically which objections must be made or waived:
(A) Objection to Competence, Relevance, or Materiality. An
objection to a deponent’s competence—or to the competence, relevance, or materiality of testimony—is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.
(B) Objection to an Error or Irregularity. An objection to an error
or irregularity at an oral examination is waived if:
(i) it relates to the manner of taking the deposition, the form of a
question or answer, the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that time; and
(ii) it is not timely made during the deposition. [Emphasis Added].
The Rules should be abided by during the course of the deposition.
Form objections. While unspecified “form” objections are certainly concise, they
do nothing to alert the examiner to a question’s alleged defect. Because they lack specificity, “
form” objections do not allow the examiner to immediately cure the objection.
Permissible objections. If an objection could have been obviated at the time of
the deposition and it is not made, it is deemed waived. The only objection you should make are “insufficient foundation”, “compound”, “argumentative”, “asked and answered,” and “work
product privilege” or “attorney client privilege.” All other objections are available and can be
raised at a later time.
Below is a list of potentially impermissible objections (check your jurisdiction):
1. Speaking Objections. Speaking objections are not allowed and can draw
sanctions. Your objection needs to be short and concise.
2. No right to consultation. A witness has no constitutional right to consultation
while testifying. Perry v Leake, 488 US 272 (1989).
3. Recesses. It has been held a deponent has no right to consultation during
depositions and during recesses. Hall v Clifton Precision, 150 F.D.R. 525 (E.D. Penn. 1993).
4. Communications during recesses. There is no attorney client or work product
privilege for discussion between attorney and deponent during recesses. You can ask what they
talked about. Id.
5. Questions by Defending Counsel. An attorney cannot state on the record their
interpretation of a question asked. Hall, supra.
6. If you know or if you understand is a speaking objection (coaching). Suggestions such as
“if you know” or “if you understand” are raw unmitigated coaching and never appropriate.
Serrano v Cincinnati Ins. Co., 2012 WL 20871 *4. (Kansas)
7. Calls for speculation. Objections to “speculation” are not form. It’s also
coaching. Serrano, supra.
8. Vague Objection. Saying a question is “vague” is improper speaking objection.
Serrano, supra. Likewise, a lawyer cannot object saying he/she didn’t understand the question.
9. Multiple objections. Rambo-like multiple objections prohibited. In Re
Stratosphere, 182 F.R.D. 614 (D. Nev. 1998).
10. Excessive number of objections. Excessive number of objections is
sanctionable. Fed. R. Civ. P. 30(d), Committee Notes 1993.
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.
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 the defense as irrelevant and unfairly prejudicial.
The general rule in Indiana is that in a wrongful death action a right of action or an amount of recovery is not affected by the fact that the surviving spouse has remarried or contemplates remarriage. Wabash R. Co. v. Gretzinger (1914), 182 Ind. 155, 104 N.E. 69; Consolidated Stone Co. v. Morgan (1903), 160 Ind. 241, 66 N.E. 696; Gilmer v. Carney, 608 N.E.2d 709 (Ind. Ct. App. 1993); City of Bloomington v. Holt (1977) 172 Ind. App. 650, 711, 361 N.E.2d 1211(held motion in limine prohibiting mention of the fact, probability or possibility of remarriage of the plaintiff including with whom he is residing was proper). This restriction applies and restricts proof that a spouse is living with another person and applies regardless of gender. City of Bloomington v. Holt, supra.
The enactment of IC 34-4-36-1,2 concerning payments from collateral sources should not be read or interpreted as changing Indiana’s traditional common law view. The collateral source statute clearly addresses only evidence of monetary payments. Gilmer v. Carney, supra. Since statutes in derogation of the common law are to be strictly construed and should not be extended beyond their express terms or what they unmistakably imply, Indianapolis Power Light v. Brad Snodgrass, Inc. (1991) Ind., 578 N.E.2d 669, IC 34-4-36-2 should not be extended to embrace nonmonetary items such as remarriage. Id.
So be ready for this issue and address it in your pretrial motion in limine so that the defense is prohibited from throwing a skunk into the jury box.
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.
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(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?
Absence makes the.heart grow fonder and can also act as proof positive in a case of “missing” evidence or documents. First, there are two noted exceptions to the hearsay rule for the absence of a record. Indiana Rule of Evidence 803 has two subdivisions that deal with the admissibility:
803. Hearsay Exceptions: Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness.
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(6) Records of Regularly Conducted Business Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony or affidavit of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term “business” as used in this Rule includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
(7) Absence of Entry in Records Kept in Accordance With the Provisions of Paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
(8) Public Records and Reports. Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or data compilations in any form, of a public office or agency, setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule: (a) investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case; (b) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; (c) factual findings offered by the government in criminal cases; and (d) factual findings resulting from special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case.
(9) Records of Vital Statistics. Records or data compilations in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.
(10) Absence of Public Record or Entry. To prove the absence of a record, report, statement, or data compilation in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation in any form was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that a diligent search failed to disclose the record, report, statement, or data compilation, or entry.
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The reason behind the exception for business records and their absence is the fact that they are regularly maintained records upon which the company relies in conducting its business which assures their trustworthiness. The rules of evidence governing the admission of business records are of common law origin and have evolved on a case-by-case basis to keep pace with the technology of current business methods of record keeping. This logic supports the existence of an exception for public records ( and their absence) for governmental organizations who must rely on the trustworthiness of their records to carry out their duties.
Likewise, the absence of a witness can make their prior testimony, statement against interests or dying declaration admissible. See Rule 804. Hearsay Exceptions: Declarant Unavailable.
Finally, if evidence goes missing, then its absence may give rise to a positive inference that the evidence would have been unfavorable had it been found and not gone missing. In Miller v. Federal Exp. Corp., 6 N.E.3d 1006 (Ind.App.,2014) The Indiana Supreme Court recognized that:
[I]ntentional destruction of potential evidence in order to disrupt or defeat another persons’s right of recovery is highly improper and cannot be justified. The intentional or negligent destruction or spoliation of evidence cannot be condoned and threatens the very integrity of our judicial system. There can be no truth, fairness, or justice in a civil action where relevant evidence has been destroyed before trial. Destroying evidence can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence or to develop other evidence, which may be less accessible, less persuasive, or both.
The spoliation rule also has applies in the cases of an absent witness. If a party has exclusive power to produce a material witness and fails to do so, it may give rise to an inference that the witness would testify unfavorably to the party who had the exclusive control. Breese v. State, 449 N.E.2d 1098 (Ind. Ct. App. 1983); Bowes v. Lambert, 114 Ind. App. 364, 51 N.E.2d 83 (1943); Public Sav. Ins. Co. v. Greenwald, 68 Ind. App. 609, 118 N.E. 556 (1918); Godwin v. De Motte, 64 Ind. App. 394, 116 N.E. 17 (1917).
The spoliation rule also is enforced in federal court, however, exclusive control and a lack of availability to the complaining party must be shown. Oxman v. WLS-TV, 12 F.3d 652, 661 (7th Cir. 1993); Chicago Coll. of Osteopathic Med. v. George A. Fuller Co., 719 F.2d 1335, 1353 (7th Cir. 1983); see also Fey v. Walston & Co., 493 F.2d 1036, 1053 (7th Cir. 1974) (where missing witness was beyond subpoena power of defendants and there was evidence both that missing witness was available to adverse party and that missing witness’s testimony could have thrown significant light on crucial question in case, it was error to instruct that jury may infer missing witness’s testimony would be merely “of no aid” rather than “adverse” to non-producing party’s case).