September 20, 2012 COMMANDMENTS OF EXPERT CONSULTING AND COMMUNICATIONS WITH COUNSEL

1. September 20, 2012 COMMANDMENTS OF EXPERT CONSULTING AND COMMUNICATIONS WITH COUNSEL KELLY DOBBS BUNTING, ESQUIRE, Greenberg Traurig CHAD L. STALLER, J.D., M.B.A., M.A.C., A.V.A The Center For Forensic Economic Studies

2. The Top 10 Questions When Using an Expert Witness__________________________

3. Do I even need an expert? #1

4. Why use an expert???? • Expert’s opinion based upon background, training, and experience will assist trier of fact • Add valuable testimony which assists in the presentation of the case-in-chief or rebut claims made by opposing side • Value added service

5. What kind of expert do I need? #2

6. Experts Are Not Department Stores. • They are small boutiques with a limited selection of goods and services. • Not using any expert is better than using an unqualified expert.

7. #5#3WHAT RULES APPLY TO EXPERT TESTIMONY?____________________________The general principles oflaw governing the use ofexpert witnesses

8. Fed. R. Evid. 702 • If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

9. Federal Court: The Daubert Test • (1) whether the theory or technique about which the expert is testifying can be or has been tested; • (2) whether the object of the testimony “has been subjected to peer review and publication;” • (3) the known or potential rate of error of the theory or technique; • (4) the existence of standards and controls; and • (5) general acceptance in the relevant scientific community (no longer the sole factor but “can yet have a bearing on the inquiry”)

10. Pa. R. Evid. 702 • If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

11. State Court: The FryeTest • In order for expert testimony to be admissible, “the thing from which [the expert testimony is deduced] must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”

12. How do I find an expert? #4

13. Selecting Your Expert • Credibility • Integrity • Demeanor • Personality • Experience • Technical Prowess

14. Forming the Opinion • Expert opinion must be consistent with • Applicable professional standards • Facts of the case: there is no absolute truth, only a rational explanation of the occurrence • Juror’s common sense and life experience • Scientific rigor

15. Expert Opinions Contain • Basis for opinions: qualitative and quantitative • Sufficient explanation to allow reproduction of calculations by qualified individuals • Assumptions and their basis

16. An Opinion Is Not • A collection of technicalities • A group of unsupported declarations • Derived from unsupportable assumptions provided by counsel • A simple list of methods and figures

17. How do I preserve privilege in my communications with the expert? #5

18. F.R.E. 501 • The common law—as interpreted by the U.S. courts in the light of reason and experience—governs a claim of privilege unless any of the following provides otherwise: • the United States Constitution; • a federal statute; or • rules prescribed by the Supreme Court.

19. F.R.E. 501 (cont.) • But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

20. Attorney-Client Privilege and Non-Lawyers • In re: Cendant Corp. Securities Litigation, 343 F. 3d 658 (3d Cir. 2003) • It is true that in some cases the attorney-client privilege may be extended to non lawyers who are employed to assist the lawyer in the rendition of professional legal services. This extension of the privilege to non lawyers, however, must be strictly confined within the narrowest possible limits consistent with the logic of its principle and should only occur when the communication was made in confidence for the purpose of obtaining legal advice from the lawyer. If what is sought is not legal advice or if the advice itself is the accountant's rather than the lawyers, no privilege exists. • U.S. v. Patrick J. Roxworthy, in the capacity of Vice President, Tax Yum! Brands, Inc. (6th Cir. No. 05-5776, August 10, 2006

21. Federal Common Law Privileges: Deliberative Process Privilege • Permits government to withhold documents containing “confidential deliberations of law or policymaking, reflecting opinions, recommendations, or advice.” • Privilege’s purpose is to “prevent injury to the quality of agency decisions.” • What is notprotected: • Factual information, as long as it is severable from the confidential deliberations • Communications made after the agency makes its decision Redland Soccer Club, Inc. v. Department of the Army of the United States, 55 F.3d 827, 853 (3d Cir. 1995)

22. F.R.C.P. 26(b)(3) • Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: • they are otherwise discoverable under Rule 26(b)(1); and • the party shows that is has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Rule 26(b)(1) describes the general scope of discovery.

23. F.R.C.P. 26(b)(4)(A): Depositions of Experts Who May Testify • A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.

24. F.R.C.P. 26(b)(4)(B): Trial-Preparation Protection for Draft Reports or Disclosures • Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded. Rule 26(a)(2) refers to disclosure of expert testimony.

25. F.R.C.P. 26(b)(4)(C): Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses • Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications: Rule 26(a)(2)(B) refers to experts who must provide a written report

26. F.R.C.P. 26(b)(4)(C): Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses (cont.) • relate to compensation for the expert’s study or testimony; • identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or • identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.

27. F.R.C.P. 26(b)(4)(D): Expert Employed Only for Trial Preparation • Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial.

28. F.R.C.P. 26(b)(4)(D): Expert Employed Only for Trial Preparation (cont.) • But a party may do so only: • as provided in Rule 35(b); or • on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. Rule 35(b) refers to reports of physical and mental examinations

29. Two-Tiers of Protection for Work Product • Work prepared in anticipation of litigation by an attorney or his agent is discoverable only upon a showing of need and hardship; • “Core” or “opinion” work product that encompasses the “mental impressions, conclusions, opinion, or legal theories of an attorney or other representative of a party concerning the litigation” is “generally afforded near absolute protection from discovery.” In re: Cendant Corp. Securities Litigation, 343 F. 3d 658 (3d Cir. 2003)

30. Pa. R.E. 501: Privileges • Privileges as they now exist or may be modified by law shall be unaffected by the adoption of these rules.

31. 42 P.S. § 5928: Attorney-Client Privilege—Civil Matters • In a civil matter, counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.

32. Deliberative Process Privilege • Protects same categories of documents protected by federal deliberative process privilege • To claim the privilege, the government must show that • (1) the communication was made before the deliberative process was completed and • (2) the communication was deliberative in character, i.e., it was a direct part of the deliberative process in that it made recommendations or expressed opinions on legal or policy matters. Id. • Information that is purely factual, even if decision-makers used it in their deliberations, is usually not protected. Unified Judicial System v. Vartan, 557 Pa. 390, 399, 733 A.2d 1258, 1263 (1999)

33. Other State Privileges that May Apply to an Expert or Consultant • Self-Critical Process Privilege • Not well-defined and not generally recognized • Grounded on the premise that disclosure of documents reflecting candid self-examination will deter or suppress socially useful investigations and evaluations or compliance with the law or professional standards. • Party asserting privilege must show that: • the information must result from critical self-analysis undertaken by the party seeking protection; • the public must have a strong interest in preserving the free flow of the type of information sought; • and the information must be of the type whose flow would be curtailed if discovery would be allowed. Van Hine v. Comm. State Dep’t, 856 A.2d 204 (Pa. Commw. 2004)

34. How do I talk to the expert? #6

35. Words Experts Hate To Hear • This case is going to settle • You don’t need to know that • Can you do it for less? • The lawyer on the other side doesn’t understand the issues • Can you do it this way, just this once?

36. DISCOVERY • No secrets. Bad facts can have explanations, but theories that ignore bad facts cannot be explained (especially at trial) • Consultation • Document production • Interrogatories • Deposition

37. #7HOW DO I QUALIFY MY EXPERT?____________________________Helpful hints on making it through qualification

38. Trial Testimony • Voir Dire • Establish Trust • Establish Role • Establish Tone Tell the jury how you will meet its expectations of what an expert can contribute. This is the expert’s chance to sell himself / herself to the jury.

40. Blah, Blah,Blah, Blah… #8HOW DO I PREPARE AND CONTROL MY EXPERT?___________________________The proper presentation of the expert

41. Direct Examination • Present a logical, compelling and coherent theory that makes sense • Provide enough detail to prevent the jury from inferring information that would be harmful • Fully explain technical concepts that are critical to understanding the opinion

42. More Direct • Acknowledge warts • Allow the Q & A to flow: avoid long narratives, avoid rapid fire short answers to long questions • Teach the jury: look for understanding • Reduce the conflicts facing the jury • Use visuals—created on the spot if possible

43. Still More Direct • Be decisive • Emphasize accuracy and certainty • Maintain eye contact with jurors • Avoid jargon

44. Redirect • Use redirect to explain issues left unsaid • Stay away from problem areas • Read cues from the testifier

45. How do I cross-examine the other side’s expert? #9

46. Depositions • Strategic Decision—understand the opinion or destroy it • Gather information as a basis for trial—define four corners of opinion • Don’t over-depose—surprises can be fun

47. Bad Cross Examination • Confuses the story • Technically correct but immaterial • Appears to be quibbling • Is argumentative • Fails to take jury to a new place

48. Correct But Often Pointless Expert Witness Cross-Examination • E.G., attack on credentials • “Do you advertise?” • “Have you published?”

49. Disastrous Expert Witness Cross-Examination Questions • Opens big, wide door for opposition to tell its story, e.g. • “Please explain to me how you arrived at…” • “Why did you assume…”

50. Good Cross Examination • Short • Issue-oriented • Exposes illogical thinking • Reveals lack of factual/scientific knowledge • Avoids nit picking • Sets up your expert