American Bar Association
Forum on the Construction Industry
2013 Mid Winter Meeting
“PREPARING THE
DAMAGES EXPERT FOR
TRIAL”
PRESENTERS:
• Roy Bash
Polsinelli Shughart PC
Denver, CO / Kansas City, MO
• Patrick A. McGeehin, CPA
FTI Consulting, Inc.
West Palm Beach, FL / Rockville, MD
American Bar Association
Forum on the Construction Industry
2013 Mid Winter Meeting
“PREPARING THE
DAMAGES EXPERT FOR
TRIAL”
PRESENTERS:
• Roy Bash
Polsinelli Shughart PC
Denver, CO / Kansas City, MO
• Patrick A. McGeehin, CPA
FTI Consulting, Inc.
West Palm Beach, FL / Rockville, MD
TOPICS FOR DISCUSSION
I. Opening Statements
II. The Basics
III. Rule 26, as Amended
IV. Trial Attorney and Expert – Distinct Roles
V. Closing Arguments “Do’s and “Don’ts” for
Preparing a Damages Expert
I. Opening Statements
“People who make sense are powerful
persuaders.” - Jim McElhaney a/k/a Angus
“Common sense often makes good law.”
- Justice William O. Douglas
I. Opening Statements
• Preparation for testimony begins during
selection
• Preparation continues as case “theme” is
developed and refined
• And,
I. Opening Statements
• Preparation requires frequent
communication between the trial attorney
and the testifier
• Preparation necessitates a clear
understanding of
• The role of the attorney and expert
• The facts on which the claim or defense is
premised
I. Opening Statements
• Preparation and Training
• Communicate and Support the Theme
• Seasoning: Make your Points Memorable
II. THE BASICS
• Ethical obligation to properly prepare expert
• In the Matter of Disciplinary Proceedings
Against Warmington, 568 N.W.2d 641 (Wis.
1997). Failure to supervise preparation of
expert constituted failure to provide competent
representation
• Select an expert that can meet “gate keeper”
function
• Brennan v. St. Louis Zoological Park, 882
S.W.2d 271 (Mo.App.E.D. 1994). Pertinent
State or Jurisdiction specific qualifications to
provide opinions.
II. THE BASICS
Witness preparation “is the mark of a good trial
lawyer and is to be commended because it
promotes a more efficient administration of
justice and saves court time.” State v.
McCormick 259 S.E.2d 880 (1979).
•Preparation assistance is expected & essential
•
•
•
•
•
Review expert’s report and prior testimony
Test and challenge expert’s opinions
Prepare expert for cross-examination
Prepare for presentation
Review potential exhibits
II. THE BASICS
• Preparation goals include
• Education of witness and attorney
• Modification of testimony delivery
• Hone presentation skills to “teach”
• “Coaching” vs. preparation
• Witness “coaching” may violate Professional
Rule of Conduct 3.4, Fairness to Opposing
Party and Counsel
No Texting and Deposing
“You mentioned the Navy, for example, and that we have fewer ships than we
did in 1916. Well, Governor, we also have fewer horses and bayonets,
because the nature of our military’s changed.”
“We have these things called aircraft carriers, where planes land on them.
We have these ships that go underwater, nuclear submarines.”
III. RULE 26, AS AMENDED
Addressed concerns about expert discovery:
• Rule 26(a)(2)(B) – requires disclosure of
“facts or data” (formerly “data or other
information”) in written report
• Draft expert reports – qualify as work product
if draft of ultimately submitted report
authored by reporting expert
• Notes made by the expert – typically a case
by case determination of discoverability
III. RULE 26, AS AMENDED
Addressed concerns about expert discovery:
• Communications between experts (testifying
& consulting) – typically discoverable if
contain facts/data upon which expert relied
• Communications between counsel and
reporting expert are explicitly protected
• One expert in two roles (as fact and expert
witness) – discoverability depends upon role
under which materials were generated
IV. DISTINCT ROLES
• Distinct but Complimentary
Trial Attorney
Expert
Trial Lawyer
ADVOCATE FOR CLIENT
•
•
•
•
•
Credibility
Civility
Confidence
Curiosity
Competitive Spirit
H. Scher - Inside Counsel Aug 2012
Role of Expert
TEACHER
• Another advocate creates credibility issues
• Incomprehensible Erudition -- waste
• Incredible Qualifications – not impressed
Angus May 2008 ABA Journal
V. “DO’s” and “DON’Ts”
Thoughts from the perspective of a seasoned
expert witness and trial attorney
“Success is far more a function of consistent
common sense than it is of genius”
V. “DO’s” and “DON’Ts”
• Don’t wait until the last minute to prepare
the expert witness
• Final meeting with the expert before
scheduled testimony time
• If travelling, ensure your expert arrives
well before testimony
V. “DO’s” and “DON’Ts”
• Assure the expert has read his/her
deposition transcript
• Ask the expert to identify areas of
vulnerability
• Discuss limits on testimony regarding
communications with attorney team
V. “DO’s” and “DON’Ts”
• Clarify whether report drafts, notes, emails, etc. are discoverable
• Discuss what should and should not be
taken to the witness stand, and why
• Assist witness for natural delivery to judge,
jury, opposing counsel
V. “DO’s” and “DON’Ts”
• Identify and prepare expert for crossexamination themes
• Identify and address how to distinguish
prior testimony that may conflict with
current case’s position and consider
dealing with during direct testimony
V. “DO’s” and “DON’Ts”
• Identify and address how to distinguish
published positions that may conflict with
current case’s position
• Ensure that expert is prepared to address
the role of assistance by staff members
V. “DO’s” and “DON’Ts”
• Discuss professional standards applicable
to the expert’s work
• If AICPA’s Statement on Standards for
Consulting Services (SSCS) is applicable,
ensure expert is able to distinguish from
audit-type standards
V. “DO’s” and “DON’Ts”
• Ensure your expert has read applicable
contract provisions, and inform him or her
as to legal interpretation
• Identify and discuss with expert the
names, titles and dates of conversations/
meetings with Client representatives
V. “DO’s” and “DON’Ts”
• If relying on any other expert or fact
witnesses, keep expert informed of any
issues or changes that may impact
expert’s testimony
• Ask expert to review all calculations and
identify any corrections or errors. If any
issues are identified, address them on
direct
V. “DO’s” and “DON’Ts”
• Discuss expert’s fees and consider
addressing on direct
• Make sure level of detail in graphic aides/
PowerPoint slides is appropriate
• Decide on “presentation” vs. “Q&A” format
• Be careful when using examples “off the
cuff”; can easily backfire