[Topics] [Phillip Kolczynski's Biography]
How To Be A Successful Expert Witness
How To Be A Successful Expert Witness is a topical outline
designed to highlight tips for experts in aviation and related fields,
who may be retained by attorneys to assist with analyzing and
presenting a client's case. Technical witnesses, such as
investigators, inspectors, engineers, pilots, maintenance
professionals, etc. may also find some of the tips provided in this
article of use in preparing for depositions and trial.
The author, Phil Kolczynski, who has extensive experience working with
aviation experts in aircrash litigation and trials, provides practical
and creative recommendations. This topical outline is one of the few
articles of its kind, written by an Aviation Litigation Attorney for
An expert working on an actual case should coordinate with the
attorney who hired him before implementing these guidelines, so as to
conform to that attorney's strategy under the laws of an applicable
jurisdiction. The purpose of this topical outline is to raise issues
for further discussion, as well as to encourage professionalism and
ethics among those experts who consult and testify in litigation.
I. Make Sure You Get Paid.
- A. Confirm in writing:
- 1. That the lawyer should pay your bills unless it is mutually agreed that the Client will pay them directly.
- 2. That bills will be paid monthly or quarterly.
- 3. Discuss customary fee arrangements:
- a. Research, testing and analysis.
- b. Consulting.
- c. Testifying in deposition and Trial (often a higher charge).
- d. How to charge for travel and other costs.
- B. The use and abuse of retainers (Example of Abuse: "Retention For Prevention" - Attorney hires noted expert to keep other side from hiring him/her).
- C. Confirm verbally.
- 1. Will expense estimates be needed?
- 2. Do you have authority to use other consultants or subcontractors?
- 3. Do you have the freedom to conduct, perform or create any testing, interviews or demonstrative aids, etc.?
- 4. What are the case discovery deadlines and your consultant work-product deadlines?
- D. Bill regularly and submit detailed bills without disclosing work product in your description of services:
- 1. Tactfully ascertain attorney's client billing cycle.
- 2. Recommended methods for billing telephone calls and conferences.
- 3. Use task log if directed by the attorney.
- 4. Use travel logs when directed by the attorney.
II. Ethics And Experts.
- A. Before accepting employment, always ensure that no conflict of interest exists.
- 1. Obtain instructions from attorney as to confidentiality and other client concerns.
- 2. Where potential conflicts exist, seek permission to consult from prior "confidants" in writing.
- 3. Penalties for consulting or acting as an expert in a conflict of interest:
- a. Expert disqualified from testifying.
- b. Attorney and expert disqualified from the case.
- B. Sources of expert ethics:
- 1. The oath.
- 2. Ethics Guidelines in the expert's field.
- 3. The attorney's Canon of Ethics and State Professionals' Codes.
III. Become An Indispensable Consultant.
- A. As soon as you are retained, advise the attorney about photographs, testing, measurements, etc., which must be performed as soon as possible to preserve evidence.
- B. Identify key documents which must be obtained.
- C. Ascertain the attorney's objectives. Are you testifying on breach of the standard of care, or causation, or both?
- D. Outline your normal analytical procedures and obtain approval to implement them.
- E. If you are to be an investigator and consultant, outline your investigative plan and obtain approval.
- F. Raise issues and offer advice.
- 1. Make clear that there is no charge for advice if outside the strict working guidelines imposed by the attorney.
- 2. Make sure you point out both the favorable and unfavorable facts.
- 3. Identify investigative leads and clarify which are "long shots".
- 4. Point out the scientific testing methods available to shed light on the problem and costs associated.
- 5. Identify false or weak assumptions and inadequate work by other "experts".
- 6. Determine whether the attorney needs your expertise on a technical subject or the industry involved, or both.
- 7. Before you contact fact witnesses or persons with technical information, coordinate with the attorney.
- G. Identify other research resources for the attorney.
- H. Return your attorney's calls promptly.
- I. Find ways to save money for the client.
- J. Supply journal articles and other literature which decipher complex subjects for the attorney.
- K. Make sure you understand your assignment:
- 1. Are you to be an investigative/researcher and/or a consultant and an expert?
- 2. Familiarize yourself with all relevant aspects of the case so as to understand your role in the litigation.
- 3. Ascertain the scope of your involvement for the client, i.e., the subject areas in which your expertise will or will not be used.
- 4. Pinpoint sensitive areas and make sure you understand your confidentiality responsibilities.
- 5. What materials will the attorney provide for review?
- 6. What documents are you expected to locate?
- L. Remember a little knowledge can be dangerous - Do not engender overconfidence on the part of a technically naive attorney. Identify opinions on which reasonable experts may differ.
IV. Plan Your Transition From A Confidential Consultant To A Testifying Expert.
- A. Once officially "Disclosed" or "Designated" as a Testifying Expert, all of your analyses, notes, conversations, reports, correspondence, opinions, research, photos, etc., usually become discoverable.
- B. Many trial attorneys prefer no "written" reports from experts.
- 1. Federal Courts now require written reports.
- 2. Examples of problems that can develop with written reports: Premature conclusions, inconsistencies, scope of analysis incongruities.
- 3. Situations for which reports are particularly helpful:
- a. Reports for settlement.
- b. Reports for mediation, arbitration, mini-trial.
- c. Declaration reports for summary judgment motions.
- d. Documentation for insurance companies that are not concerned with discoverability.
- e. Documentation for the attorney or client who wants reports to justify payment of fees.
- C. Establish your own internal document retention policy for your notes.
- 1. Avoid jotting editorial notes on documents, particularly depositions.
- 2. Consider whether you need to keep "laundry lists" or "to do" lists.
- 3. Be careful what you write in your notes: Imagine the cross-examiner's delight at finding the penned-in words "problem area", "smoking gun", or "point out to attorney" next to some fact unfavorable to the client.
- 4. Remember: the more unnecessary notes, the longer the deposition, the greater the scope of the "inquisition."
- 5. Consider also that it may be necessary to have notes of calculations, formulas, measurements, etc. to support your opinions.
- D. Coordinate carefully with the attorney the "timing" of the creation of demonstrative evidence before deposition and trial.
- E. Determine who will serve as the opposing expert and forewarn your attorney about their strengths and limitations.
- F. Expect that an attorney may "bench" you if your opinions are not helpful to his client but may still retain you for advice and testing.
- G. Prevent expert designation abuse whereby some attorneys officially designate their expert to the Court and opponents without the expert's permission. (Discuss when an expert is entitled to be paid more than the subpoena fee).
- H. Beware of attorneys that use a subpoena to depose a non-retained, technically knowledgeable person, and "milk" them for opinions and expertise.
V. How To Win The Battle Of The Experts.
- A. Assume that you are truly an expert, convey a creditable impression and know the case thoroughly. How can you be more persuasive than a comparably equipped expert on the other side?
- 1. Support your opinion with:
- Specially designed demonstrative aids that highlight your opinions but which cannot be used to the benefit of the opposition. (Example: If you are going to have the accused try on a glove in front of the jury in "the trial of the century", make sure it's going to fit ahead of time.)
- Anticipate opportunities for "impromptu" explanations on the blackboard.
- Research and use of:
- Corroborative government data; and
- Supportive government statutes, regulations and directives.
- Mastery of facts in investigative reports.
- Adroit references to testimony in depositions of witnesses, particularly the opposing party and their experts.
- The ability to explain that you have, for example:
- Flown the accident airplane or test driven the car
- Visited the "site" or
- Analyzed the failed product or
- Handled the same problem or
- Examined the patient or
- Personally tested the sample.
- Corroboration of your opinions with personal investigation and interviews.
- The assurance that you have personally checked the work of subordinates or sub-consultants (The Pathologist Fung's mistake in the O.J. Simpson trial).
- 2. Take advantage of:
- The use of photographs, video, audio, computer analysis, etc., to positively reinforce the basis for your opinion.
- Easily understandable calculations.
- Authoritative treatises, journal articles, etc.
- Selective use of governmental regulatory pamphlets, handbooks, guides, etc., to add imprimatur to your opinions.
- Differential diagnosis (my opinion is correct because competing opinions cannot be correct for these reasons...)
- Consistent/inconsistent analysis (the uncontroverted facts support my opinion and are inconsistent with that of the opposition).
- Inductive ("building block") reasoning juxtaposed with deductive analysis.
- The use of well thought out metaphors, analogies, examples, and quotations in response to anticipated cross-examination.
- Confident, forthright and down-to-earth demeanor.
- Objective comment on the omissions and mistakes of the other side's experts made during the trial.
VI. Avoid Mistakes Other Experts Have Made:
- Offering opinions outside your area of expertise.
- Failing to master the facts of the particular case in which you are employed.
- Relying on data or documents not pertinent to the date on which the event occurred which has given rise to the lawsuit. (Example: current standards applied to an occurrence 3 years ago.)
- Neglecting to learn the opposing lawyer's theory of the case.
- Forgetting how your opinion fits into your client's or attorney's theory of the case.
- Becoming an advocate instead of an unbiased expert whose opinion happens to favor your client.
- Billing for work not authorized by the attorney and client or analysis which satisfies intellectual curiosity but is not necessary for the case.
- Mishandling custody of tangible evidence.
- Allowing your "ego" to intrude in your deposition or trial testimony.
- Revealing arrogance when discussing how much you are being paid to testify.
- Damaging your credibility by quibbling over peripheral issues when on the "stand".
- Losing your temper on the stand (unless its intentional and restrained).
- Answering hypothetical questions without forcing the cross-examiner to supply all the variables or assumptions.
- Falling victim to the short-cut of reviewing attorney's deposition summaries instead of personally reading the deposition.
- Answering questions in deposition or trial on cross-examination or direct, if you do not understand the question.
- Ignoring the fact that lawyers, the legal system and as a result juries, pay a lot of attention to choice of words.
- Refusing to acknowledge the implication of possible bias resulting from prior employment (i.e., pensions, friendships with career co-workers, post-employment contracts, clients derived from prior employment)
- Forgetting to tell your attorney about related prior testimony, affidavits, speeches or publications, job assignments or lawsuits even if remotely relevant.
- Failing to reveal "resume blemishes" to your attorney (failures in school, convictions, drug or alcohol problems, job "lay offs", conflicts of interest, prior accidents, license suspensions, etc.).
VII. Rules, Tips and Caveats.
- A. Learn the role of the technical fact witness/the technical expert witness.
- B. Understand attorney-client privilege/attorney work-product doctrines and how the expert's work may be covered.
- C. Expert opinions are admissible if they are:
- 1. Under the Frye test (some states).
- a. "Generally accepted in scientific community."
- 2. Under the Daubert test (federal).
- a. Opinions reflecting expertise which can aid the trier of fact. (Federal Rules of Evidence 702)
- b. The methodology for the opinions can be tested?
- c. The knowledge is subject to peer review and publication/ analysis?
- d. The rate of error in the scientific method utilized is acceptable?
- e. The scientific method is generally accepted in a particular industry?
- 3. May experts rely on hearsay?
- a. Definition - Hearsay is an "Out of Court statement made for the truth of the matter asserted"
- b. Hearsay may be admissible, under exceptions to the hearsay rule if it can be shown to be trustworthy, e.g., Federal Rules of Evidence 803(24) (Example: Investigating Officers Accident Report-Federal Rules of Evidence 803(8))
- c. Experts may rely upon hearsay if it is the kind reasonably relied upon by experts in your industry. Federal Rules of Evidence 703.
- D. Expert depositions are key proceedings leading to settlements in contemporary civil litigation.
- E. The expert is usually the author of demonstrative evidence.
- F. Experts must testify so that juries can understand (explain a complex subject to an intelligent 16 year old).
- G. Do expert witnesses enjoy immunity against lawsuits?
- 1. For trial testimony - almost always.
- 2. Pretrial litigation support - frequently not.
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