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The Nuts and Bolts of Expert Selection and Observing the Ethical Line Associated With the Preparation and Review of Expe

SEVEN KEYS TO THE SELECTION AND PREPARATION OF . EXPERT WITNESSES. TIMING. During the ProjectPrior to Filing a LawsuitAfter a Lawsuit is Filed. QUALITIES TO LOOK FOR. Technical Experience

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The Nuts and Bolts of Expert Selection and Observing the Ethical Line Associated With the Preparation and Review of Expe

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    1. The Nuts and Bolts of Expert Selection and Observing the Ethical Line Associated With the Preparation and Review of Expert Reports Jennifer A. Nielsen Lyman & Nielsen, LLC Oak Brook, Illinois Peter Brandt Ferencik Libanoff Brandt Bustamante and Williams, P.A. Plantation, Florida

    2. SEVEN KEYS TO THE SELECTION AND PREPARATION OF EXPERT WITNESSES

    3. TIMING During the Project Prior to Filing a Lawsuit After a Lawsuit is Filed

    4. QUALITIES TO LOOK FOR Technical Experience – Licensing Previous Expert Testimony Lack of Experience

    5. INTERVIEW Do Not Rely Upon Written Credentials Evaluate Communication Skills Ability to Interact With Client and Opposing Counsel

    6. VETTING / INVESTIGATION Investigate through Independent Sources Use of the Internet References

    7. RETENTION AGREEMENT Scope of Services Budget Confidentiality

    8. RECORD OF INFORMATION TO AND FROM EXPERT Controlling Documents to Expert Use of Log Communications from Expert

    9. MANAGING EXPERT Initial Meeting with Expert and Client Progress Meeting(s) Preparation of Reports

    10. Point/Counter-Point: The Current Rule 26 vs. The Amended Rule 26 (effective December 1, 2010)

    11. Setting the Stage . . . The evolution of Rule 26. Background of the pending amendments to Rule 26.

    12. Consultant vs. Testifying Expert cf. Existing Rule 26 vs. New Rule 26 Consultant/Non- Testifying Expert: an expert that has been employed only for trial preparation Testifying Expert: an expert that will offer opinion testimony at trial

    13. Consultant vs. Testifying Expert cf. Existing Rule 26 vs. New Rule 26 Consultant/Non- Testifying Expert: No discovery of opinions No discovery of reports No depositions Testifying Expert: Discovery of opinions Discovery of anything relied upon in making opinion Depositions permitted

    14. Consultant vs. Testifying Expert cf. Existing Rule 26 vs. New Rule 26 Exceptions to Non-Disclosure of Consultant/Non-Testifying Expert: “Exceptional circumstances” Consulted, but not Retained Pre-litigation opinions Reports provided to Testifying Expert

    15. Expert Reports cf. Existing Rule 26 vs. New Rule 26 Under what circumstances is an expert report required?

    16. Disclosure of Experts Not Required to Prepare a Report cf. Existing Rule 26 vs. New Rule 26 If an expert is not required to prepare a report, what information must be included in the expert disclosure?

    17. Expert Reports cf. Existing Rule 26 vs. New Rule 26 Are communications between an Attorney and a Testifying Expert discoverable?

    18. Expert Reports cf. Existing Rule 26 vs. New Rule 26 Are drafts of Expert Reports discoverable?

    19. Practical Implications New rules only apply to federal cases. New rules will probably be applied retroactively. Consider stipulating with opposing counsel. Only communications with Rule 26(a)(2)(B) experts will receive work product protection; 

    20. Attorney communications with testifying experts who do not prepare a report are discoverable Work product protection is not absolute. Rule 612(b) of the Rules of Evidence still applies.

    21. Segregate your non-confidential communications with testifying experts. Failure to properly disclose a non Rule 26(a)(2)(B) testifying expert may result in exclusion of the expert’s testimony. The new federal rules do not change attorneys’ ethical duties.

    22. Ethical and Legal Boundaries Relating to Expert Depositions

    23. Proper Preparation vs. Improper Coaching Rule 3.4 -- Fairness to Opposing Party and Counsel   A lawyer shall not:   (a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;   (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; . . .   (f) request a person other than a client to refrain from voluntarily giving relevant information to another party . . .

    24. Rule 8.4 -- Misconduct   It is professional misconduct for a lawyer to:   (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; . . .   (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;   (d) engage in conduct that is prejudicial to the administration of justice; . . . Proper Preparation vs. Improper Coaching

    25. Proper Preparation vs. Improper Coaching Appropriate Goals: Educating the witness Educating the attorney Improving the delivery of the testimony

    26. Proper Preparation vs. Improper Coaching Permissible Preparation: Exploring expert’s knowledge of facts Testing/challenging the expert’s opinions Reviewing questions likely to be asked Preparing for probable lines of cross examination Refreshing the expert’s recollection

    27. Proper Preparation vs. Improper Coaching Permissible Preparation (cont’d): Reviewing the factual context into which the expert’s testimony will fit Reviewing potential exhibits Explaining the deposition process

    28. Proper Preparation vs. Improper Coaching Improper Conduct: Instructing a witness about what their testimony should be Attempting to influence the witness to alter their testimony in a false or misleading way Asking the expert to avoid a legitimate area of inquiry

    29. Proper Preparation vs. Improper Coaching Improper Conduct (cont’d): Advising the expert on how to avoid a legitimate area of inquiry. Any conduct that is prejudicial to the administration of justice.

    30. “Wood-Shedding” the Expert Witness During a Deposition

    31. EXAMINATION BY COUNSEL FOR THE DEFENDANT: Q. Do you have an opinion of whether the actions of the lawyers, post-April 29, 2003, lead to the damages claimed by the Plaintiffs in this case? A. I have an opinion that there may have been a connection with the damages that they're ultimately claiming. Whether there was a cause and effect relationship -- specific actions, specific result -- I do not know, but I am -- my opinion is that there very well could have been. (Discussion held off the record) (Defense Counsel): I have no further questions.

    32. REDIRECT BY COUNSEL FOR THE PLAINTIFFS: Q. I have one question. I want to follow up on the last question he asked you about the relationship between the conduct of the Law Firm that we've been talking about and the complaint for damages made by the Plaintiffs. Do you have an opinion about whether it's more likely than not that the conduct of the Law Firm was a significant factor in causing the damages that the Plaintiffs have complained about in this case? A. Yes, I do have an opinion. Q. What is that? A. My opinion is that it is a significant factor.

    33. The Scope of Permissible Conduct at a Deposition Rule 30(d)(3)(A)  “At any time during a deposition, the deponent or a party may move to terminate or limit it 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. . . ”

    34. The Scope of Permissible Conduct at a Deposition Rule 30(c)(1) Examination and Cross-Examination.   “The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615. . .”

    35. The Scope of Permissible Conduct at a Deposition “Counsel should never forget that even though the deposition may be taking place far from a real courtroom, with no black-robed overseer peering down upon them, as long as the deposition is conducted under the caption of this court and proceeding under the authority of the rules of this court, counsel are operating as officers of this court. They should comport themselves accordingly . . .” Hall v. Clifton Precision, 150 F.R.D 525, 531 (E.D.Pa.1993).

    36. The Scope of Permissible Conduct at a Deposition Rule 30(d)(3)(A) Deposition by Oral Examination -- Motion to Terminate or Limit “At any time during a deposition, the deponent or a party may move to terminate or limit it 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. . .”

    37. The Scope of Permissible Conduct at a Deposition Rule 30(c)(2) Deposition by Oral Examination -- Objections. “. . .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).”

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