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“PREPARING THE DAMAGES EXPERT FOR TRIAL”

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.

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“PREPARING THE DAMAGES EXPERT FOR TRIAL”

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  1. American Bar Association Forum on the Construction Industry 2013 Mid Winter Meeting “PREPARING THE DAMAGES EXPERT FOR TRIAL” PRESENTERS: Roy Bash PolsinelliShughart PC Denver, CO / Kansas City, MO Patrick A. McGeehin, CPA FTI Consulting, Inc. West Palm Beach, FL / Rockville, MD

  2. American Bar Association Forum on the Construction Industry 2013 Mid Winter Meeting “PREPARING THE DAMAGES EXPERT FOR TRIAL” PRESENTERS: Roy Bash PolsinelliShughart PC Denver, CO / Kansas City, MO Patrick A. McGeehin, CPA FTI Consulting, Inc. West Palm Beach, FL / Rockville, MD

  3. TOPICS FOR DISCUSSION • Opening Statements • The Basics • Rule 26, as Amended • Trial Attorney and Expert – Distinct Roles • Closing Arguments “Do’s and “Don’ts” for Preparing a Damages Expert

  4. 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

  5. I. Opening Statements • Preparation for testimony begins during selection • Preparation continues as case “theme” is developed and refined • And,

  6. 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

  7. I. Opening Statements • Preparation and Training • Communicate and Support the Theme • Seasoning: Make your Points Memorable

  8. 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.

  9. 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

  10. 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

  11. No Texting and Deposing

  12. “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.”

  13. 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

  14. 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

  15. IV. DISTINCT ROLES • Distinct but Complimentary • Trial Attorney • Expert

  16. Trial Lawyer ADVOCATE FOR CLIENT • Credibility • Civility • Confidence • Curiosity • Competitive Spirit H. Scher - Inside Counsel Aug 2012

  17. Role of Expert TEACHER • Another advocate creates credibility issues • Incomprehensible Erudition -- waste • Incredible Qualifications – not impressed Angus May 2008 ABA Journal

  18. 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”

  19. 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

  20. 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

  21. V. “DO’s” and “DON’Ts” Clarify whether report drafts, notes, e-mails, 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

  22. V. “DO’s” and “DON’Ts” Identify and prepare expert for cross-examination themes Identify and address how to distinguish prior testimony that may conflict with current case’s position and consider dealing with during direct testimony

  23. 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

  24. 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

  25. 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

  26. 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

  27. 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

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