Expert testimony can make or break your case. But the successful examination of an expert witness at trial (whether on direct or cross) represents the culmination of a long process which can – and in most cases should – start at the very inception of your case. This article focuses on the critical predicates to a successful presentation at trial – namely, expert witness retention and discovery.
I. Expert Witness Selection
Do: Start thinking about experts at the very beginning of the case
A good expert witness can do much more than just offer an opinion at trial – she can literally help you build a winning case. Therefore, the sooner you involve your expert in the case, and start taking advantage of her expertise, the better. This is especially true where expert testimony will be central to the case. For example, if your case will turn on a forensic accounting, retaining a qualified forensic accountant should be your very first order of business. Similarly, in cases which involve specialized standard of care – such as attorney or medical malpractice claims – expert testimony will be required to sustain the plaintiff’s burden of proof. In these cases, failure to timely retain and prepare a qualified expert could cost you the case as early as summary judgment.
Once retained, make use of your expert. Ask her what documents and information she needs to formulate her opinion(s), and enlist her assistance in drafting discovery requests. Remember that in this age of e-discovery, format matters. Require that your adversary produce electronic data in a format that your expert can work with. By the same token, do not withhold from discovery materials and data that your expert will rely upon to form her opinions, at the risk of having those opinions excluded at trial.
The luxury of time will allow you to pick the right expert and make full use of her expertise to build your case. It will also allow you to make a change if it turns out you picked the wrong expert.
Do not: Wait until expert disclosures are due to start looking for an expert witness
Waiting until right before expert disclosures are due to find an expert is akin to waiting until Christmas Eve to do your shopping. The clock is ticking, desperation reigns, and the mission objective of picking the “right” expert is quickly jettisoned in favor of picking any expert. But “any” expert may turn out be the wrong expert. And you probably won’t find out you have the wrong expert until disclosures have already been made, significantly limiting your ability to fix the mistake.
Even if you luck into the right expert witness, last minute retentions are still particularly likely to go wrong. Because fact discovery has closed, you will have no opportunity to request any additional documents or data that the expert needs to formulate her opinions. If the record is voluminous, your expert likely will not have time to review and absorb all relevant background materials. And everything will be rushed, raising the risk that the expert’s work product will be marred with mistakes, which will substantially undercut her credibility at trial.
One final comment on last minute expert retentions. Pressed against a deadline, attorneys will sometimes formally disclose an expert they have not yet retained. This is not an acceptable practice. Among other things, a code compliant disclosure in this situation will require that the attorney falsely aver under oath that the expert has agreed to testify at trial. See CCP § 2034.260(c)(3). A better approach if caught up against a deadline is to ask opposing counsel to stipulate to a brief extension of the disclosure date or, if necessary, move to extend the disclosure date pursuant to CCP section 2034.230(b).
II. Communicating with Your Expert Witness
Do: Make sure your expert witness is aware of the discovery rules applicable to your communications
While most experienced experts are aware that their communications with the attorney will be discoverable, less experienced ones often are not. Moreover, even experienced experts can sometimes use a reminder that their communications will be discoverable. It is therefore good practice to remind your expert at the outset of the engagement that all communications will likely be discoverable by the other side and thus potential fodder for cross-examination. It is also a good idea to discuss specific protocols for communicating. I will typically ask that e-mails be limited to matters of scheduling, and that any substantive communications be done by phone. I will also typically remind the expert that their notes are discoverable. And if we’re in California state court, I will remind them that their draft reports are discoverable.
Do not: Have any written communications with your expert that you would not want presented to the finder of fact
E-mail has become for many the preferred mode of communication. Such that even experienced lawyers may be tempted to discuss substantive issues with the expert by e-mail exchange. Resist this temptation. In the hands of a skilled adversary, a seemingly innocuous comment by the lawyer can be twisted into an attempt to shape or alter the expert’s opinion.
III. Expert Disclosure
Do: Make Timely and Complete Disclosure
Assuming timely demand for exchange of expert information has been made, an untimely or inadequate disclosure is grounds for exclusion of your expert’s testimony. Likewise, full compliance on your side with the expert disclosure requirements is a prerequisite for obtaining an order precluding the opponent’s expert based on untimely or inadequate disclosure. CCP § 2034.300. The requirements for expert disclosure are spelled out in CCP § 2034.260. It’s good practice to have the statute right in front of you while drafting your expert disclosure, rather than relying on memory, or cribbing a disclosure done by somebody else.
Do not: Neglect to Disclose Non-Retained Experts
If timely demand for exchange of expert information has been made, CCP § 2034.260(b)(1) requires that parties disclose the name not only of retained expert witnesses, but of “any person whose expert opinion that party expects to offer in evidence at the trial.” If you intend to elicit expert opinion testimony (see Evid. Code §§ 800, 801) from any witness, including your client, your client’s employees, or independent third parties, be sure to make proper disclosure under § 2034.260. You will want to consider particularly whether any anticipated testimony of your client or your client’s employees falls within the Evidence Code’s definition of “expert opinion testimony,” and if so, whether that testimony is sufficiently important to warrant exposing the witness to the expert deposition that will likely follow if the witness is identified as an expert.
IV. Expert Witness Depositions
Do: Depose Your Opponent’s Experts
Expert depositions are costly, and because they typically occur right before trial, they may be seen as taking time away from more important trial preparation efforts. It can therefore be tempting to forego deposing one or more opposing experts on the theory the testimony will be immaterial, unpersuasive, or duplicative of another expert’s testimony. This may turn out to be a costly mistake.
First, without a deposition, you cannot know for sure whether the adverse expert’s testimony is, in fact, immaterial, unpersuasive, or duplicative. Nine times out of ten, the conclusion that the expert’s testimony poses no significant threat to your case may be correct. And then you get to live the exception: You’re surprised at trial by expert testimony that is directly relevant, highly persuasive, and – worst of all – effectively unrebutted. If only you had known in time, you could have taken steps to minimize the damaging effect of the testimony. But now it’s probably too late.
This leads to the second reason not deposing the expert may turn out to be a big mistake. If you’re surprised at trial by relevant, persuasive expert testimony that you’ve never heard before, you will likely have little or no ammunition for an effective cross-examination. Rather, you’ll be forced to conduct an on-the-fly, unprepared cross of a witness who is, by definition, expert in her subject and impressively confident in her opinion. These cross-exams rarely go well. Odds are high that your questioning will simply allow the expert to restate her opinions a second time, this time in response to your questions, which can have particularly damaging effect. And any efforts to attack those opinions on the fly will probably devolve into lawyer arguing with expert. That’s an argument the lawyer almost never wins.
Do not: Skip the Background Questions
It’s tempting when deposing an expert to cut straight to the expert’s report and opinions, foregoing lengthy background exam. This is one time, however, when adherence to the deposition outline can pay big dividends. Explore the expert’s background in depth. Were degrees obtained at all the schools listed on her CV? Does the expert hold relevant licenses or certifications? Has she ever been the subject of disciplinary proceedings? How many times has the expert worked with this lawyer and his law firm? What percentage of the expert’s income comes from expert work?
If you ask all the standard background questions, you may be surprised by the answers. For example, in recent years, I’ve had an architect admit his license had been suspended for misconduct, and an appraiser whose CV referenced MAI affiliation admit she was not, in fact, a member of the Appraisal Institute.
Do: “Lock-Down” the Adverse Expert Witness
The wrap up of an expert deposition can often resemble some bizarre modern dance, as the attorney struggles to lock the expert into the opinions expressed during the deposition, while the expert struggles just as hard to leave all doors open for future escape. At least in theory, the attorney, by asking proper “lockdown” questions, can preclude the expert from offering new or different opinions at trial. Those questions include: “Do you intend to offer at trial any opinions you have not expressed here today?” “Do you intend to do any further work on this case?” “If you do form additional opinions, will you notify us in advance of trial?” See Jones v. Moore, 80 Cal.App.4th 557 (2000).
Note that, even where you have asked all the right questions, trial judges are sometimes hesitant to preclude an expert from offering a new or different opinion. Even if the judge declines to exclude such opinions, however, the expert’s answers to proper “lockdown” questions may be used to impeach the credibility of the witness and her opinions at trial. [Trial practice note: if the trial court does permit the expert to offer new or different opinions, be sure to object on the record in order to preserve the issue for appeal.]
Do not: Let Your Expert Witness Leave Material Opinions Unexpressed
The flip side of locking down the opponent’s expert, is making sure that your expert does not get “locked out” of expressing opinions that you intend to elicit at trial. There will be little risk of this happening if the expert has prepared a report which details each opinion the expert intends to offer at trial: When asked whether she has expressed all opinions she intends to offer at trial, the expert can say “nothing beyond what I have testified to here today or what is stated in my report.” If the expert has not prepared a traditional report, it will often be helpful to have the expert draft a brief, but complete, outline of her opinions prior to the deposition. She may then use the outline as a “checklist” during the deposition to ensure that all opinions are expressed. But if your expert has prepared neither report nor outline, it will be up to you to keep track of your expert’s testimony and ensure that she has sufficiently covered all the bases.
If you think something has been missed, take a break before the questioning has concluded and point out the items you believe may have been overlooked. Just remember that your communications with the expert will also be fair game for questioning.
This article originally appeared in the Summer 2017 edition of the ACBA Trial Practice Section Newsletter. Prepared by Carl D. Ciochon, a partner at the Oakland law firm of Wendel Rosen Black & Dean, LLP, and co-chair of the firm’s real estate litigation group. Mr. Ciochon handles a variety of civil litigation, with a focus on real estate matters and representations involving investment funds.