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FEWA – San Francisco Chapter Dinner Meeting, 3/9/11

FEWA – San Francisco Chapter Dinner Meeting, 3/9/11 . Experts and Lawyers: A Marriage Made in Heaven (or elsewhere)? by Roberta J. Morris Lecturer, Stanford Law School. Today’s slides are posted at http://stanford.edu/~rjmorris/fewatalk.pptx The final version,

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FEWA – San Francisco Chapter Dinner Meeting, 3/9/11

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  1. FEWA – San Francisco Chapter Dinner Meeting, 3/9/11 Experts and Lawyers: A Marriage Made in Heaven (or elsewhere)? by Roberta J. Morris Lecturer, Stanford Law School Experts and Lawyers - RJMorris

  2. Today’s slides are posted at http://stanford.edu/~rjmorris/fewatalk.pptx The final version, including survey results, will be linked on http://stanford.edu/~rjmorris. Search for “FEWA.” Experts and Lawyers - RJMorris

  3. Outline • What experts are here tonight? • Digression: Amendments to Rule 26 • The Lawyer/Expert Relationship • The Best and The Worst of It Experts and Lawyers - RJMorris

  4. Your Expertise • DAMAGES (any liability area) • Computer/IT • Criminal • Employment • Environmental, Products Liability, Real Estate, Construction • Insurance/Transportation • Law • Medical • Patent • Other 20 of 35 Experts and Lawyers - RJMorris

  5. Experience (units = lawsuits*) • 0 • 1 or 2 • 3 to 7 • > 7 * Arbitrations , legislative hearings, and the like, too. 21 of 35 Experts and Lawyers - RJMorris

  6. Are you usually hired as: • A Testifying Expert • A Consulting Expert • Other 21 of 35 Experts and Lawyers - RJMorris

  7. Your Fee • Single hourly rate • Multiple rates (different for trial, travel, etc.) • Flat fee/negotiated • Decline to state/different in different cases • Nobody ever asked 21 of 35 Experts and Lawyers - RJMorris

  8. Your Hourly Rate • Up to 300/hr • 300-499/hr • 500-699/hr • 700-999/hr • 1000+/hr • Not applicable 21 of 35 Experts and Lawyers - RJMorris

  9. Arrangement(in the majority of your cases) • Written Contract • Oral Agreement/Informal • None yet. 21 of 35 Experts and Lawyers - RJMorris

  10. Why be a professional expert? 1=only in it for the money and 9=only in it because it is fun. Where are you? • One • Two • Three • Four • Five (On the Fence) • Six • Seven • Eight • Nine 21 of 35 Experts and Lawyers - RJMorris

  11. Have you as an expert: • Worked on an expert report (but never testified) • Testified at a deposition ONLY (no expert report, no trial) • Testified at a trial ONLY (no report, no deposition) • Report+Dep (no trial) • Report+Trial (no dep) • Dep+Trial (no report) • All 3 19 of 35 Experts and Lawyers - RJMorris

  12. Rule 26Rule 26 was amended effective 12/1/2010. Which of the following questions should I answer first? • What is Rule 26? • What was changed? • How long will this take? I know all about it and will run out and make a phone call. 18 of 35 Experts and Lawyers - RJMorris

  13. Rule 26 - Background Rule 26 relates to pretrial DISCOVERY in FEDERAL court cases. States have their own rules. Experts and Lawyers - RJMorris

  14. Terms of Art • Such terms should be used with care. • They don’t always mean what peoplethink they mean. • Anyone who DOES know what they mean may misunderstand if the term is misused. Experts and Lawyers - RJMorris

  15. Rule 26 - Background Before 1993, testifying experts’ documents, like lawyers’ documents, were protected from the duty to disclose under the WORK PRODUCT doctrine. In 1993, drafts of the expert’s report, all the expert’s notes, all communications with counsel, became discoverable. Effective 12/1/2010, a semblance of sanity was restored. Experts and Lawyers - RJMorris

  16. Have you been affected by (old) Rule 26 with regard to notes, drafting reports, etc? • Yes, horribly so. • Yes, somewhat. • Yes, but no big deal. • No (no problems – consulting expert or state court cases only). • No (never had the privilege [NPI]). 21 of 35 Experts and Lawyers - RJMorris

  17. New Rule 26(a)(2) and (b)(4) • Draft expert reports are NOT discoverable. (This should improve scheduling issues.) • Communications between expert and counsel are NOT discoverable (with 3 exceptions). • On a showing of substantial need and undue hardship, the other side can still get discovery. Experts and Lawyers - RJMorris

  18. New Rule 26(a)(2) and (b)(4) – useful links • Text of Rule 26, as amended. http://www.law.cornell.edu/rules/frcp/Rule26.htm • Explanation of 2010 amendments: Excerpt from the Report of the Judicial Conference available at http://www.faegre.com/webfiles/Excerpt%20from%20the%20Report%20of%20the%20Committee.pdf Experts and Lawyers - RJMorris

  19. Summary of Changes to 26(a)(2) • 26(a)(2)(B)(ii) :“facts or data” replaced “data or other information.” • A new provision for experts who do not write reports is inserted as 26(a)(2)(C). - They must disclose the subject matter of their testimony and a summary of the “facts and opinions.” • Old C and D are now D and E. Experts and Lawyers - RJMorris

  20. Summary of Changes to 26(b)(4) - 1 • 26(b)(4) has two new provisions, (B) and (C), that explicitly confer protection from discovery on: - drafts “regardless of the form in which the draft is recorded” and - communications with counsel, also regardless of form -- with 3 exceptions. • Old B and C are now D and E. Experts and Lawyers - RJMorris

  21. Summary of Changes to 26(B)(4) -2 • Protection from discovery is by invocation of Rule 26(b)(3)(A) and (B). • They were not amended. • 26(b)(3) is the WORK PRODUCT provision. • It recites that “Ordinarily, a party may not discover … things prepared … for trial by or for another party or its representative…” • The parenthetical after “representative” that begins “including …” does not say “expert” but does (and did before 12/1/2010, too) say “consultant.” Experts and Lawyers - RJMorris

  22. Summary of Changes to 26(B)(4) -3 • Communications between counsel and experts who write reports that are NOT protected from discovery are those that involve: i. compensation, ii. facts or data provided by counsel and considered in forming the opinion, and iii. assumptions provided by counsel and relied on in forming the opinion. Experts and Lawyers - RJMorris

  23. Experts and Lawyers -A Marriage Made in Heaven? • Yes, sure. • Maybe. What do YOU think? • Nah. Purgatory is closer. 20 of 35 Experts and Lawyers - RJMorris

  24. Experts and Lawyers - Marital Problems • General • Communications (Talks/Listens - too little/too much) • Money (and communication about money) • Courtship Problems: Being Chosen and Choosing • After the Honeymoon • Time (Scheduling, Estimating) • (Rule 26 changes will help) • Flexibility/Adaptability Experts and Lawyers - RJMorris

  25. Experts and Lawyers:Courtship – Theatrical Analogy An actor auditions for a part and quickly realizes that the script is stupid and the director is incompetent. The actor does not , however, withdraw from consideration because, “Any gig is better than no gig.” Is it the same for experts? Experts and Lawyers - RJMorris

  26. For an expert, is it true that“Any gig is better than no gig”? • Always • Usually • Sometimes • ON THE FENCE • Sometimes NOT • Rarely • Never 20 of 35 Experts and Lawyers - RJMorris

  27. Any Gig… • Maybe you’ll learn to love each other • You keep an open mind • You can work with all kinds OR • It’s NOT as easy to love a poor person as a rich person (poor/rich in a monetary or non-monetary sense) • You trust your instincts / first impressions • Once bitten / Been there, won’t do that again Experts and Lawyers - RJMorris

  28. Courtship – The Lawyer’s Side • Limited Pool of Genuine Talent • Conflicts • Financial: Sponsored research (esp. medicine) • Human: it’s a small world and everyone knows everyone • Outsider or Insider? • Expert witness version of “Dance 10, Looks 2” Experts and Lawyers - RJMorris

  29. Experts and Lawyers -Litigation-Specific Problems • The Moving Target Problem • Independence (credibility) v. hired gun (perceived/actual bias) Experts and Lawyers - RJMorris

  30. Experts, and the Lawyers Who Love Them • What Lawyers Like about Experts 1. Smart! Interesting! Witty! 2. Infectious Love of their Job (Great Teachers!) 3. Intellectually Curious (Great Students!) Experts and Lawyers - RJMorris

  31. Experts, and the Lawyers Who Hate Them • What Lawyers Don’t Like about Experts 1. Yes-persons 2. “Toxic Egos” 3. Bad at Cross (see 1 and 2) 4. See Marital Problems Experts and Lawyers - RJMorris

  32. Experts, and the Lawyers They Love • What Experts Like about Lawyers • Smart! Interesting! Witty! • Infectious Love of their Job (Great Teachers!) • Intellectually Curious (Great Students!) Experts and Lawyers - RJMorris

  33. Experts, and the Lawyers They Hate • What Experts Don’t Like about Lawyers • “Toxic Egos” • See Marital Problems Experts and Lawyers - RJMorris

  34. Summary • We (experts; lawyers) think we are really • smart, • conscientious, • thoughtful, • competent , • decent, and • honest . • We like it when they (lawyers; experts) are, too. • We don’t like it when they (lawyers; experts) are not. Experts and Lawyers - RJMorris

  35. Advice? • Be • smart, • conscientious, • thoughtful, • competent , • decent, and • honest . • Make sure counsel is, too. Free advice, and worth every penny. Experts and Lawyers - RJMorris

  36. THANK YOU • Any questions? • Any question slide I should try to insert on the fly? (I can try – or you can!) Afterthoughts? Please write to rjmorris@alumni.brown.edu Experts and Lawyers - RJMorris

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