“What happens when my company gets sued or needs to sue?”: Preparing experts to testify in business cases. (Part 4)

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Attorneys must work with experts when they prepare reports and written work product. But attorneys must not control the work process or overly influence it. An expert who smacks of attorney control is not credible and likely will face rigorous impeachment by the opposition or, worse, a striking of testimony by the trial judge. Thus, while attorneys should work with experts and even provide suggestions to them, an expert’s work product ultimately must be entirely his own; lawyers and clients must not draft, write, or dictate the expert’s work product. It is acceptable, for instance, for attorneys to suggest ideas or concepts for the expert’s consideration by showing the expert other reports or other materials for review, while attending carefully to the potential discoverability of such materials by the other side. Depending on the task at hand and the particulars of a given case, an expert’s report can range from a one-page bullet-point style set of opinions to a lengthy, multi-page essay and with conclusory synopsis. Attorneys must set the expectation for the right kind of final written work product that the expert will deliver.

Another task for the expert is providing deposition testimony. The expert’s deposition can become a very vital moment in the entire business case. The expert has the power to weaken or strengthen the case at a high level, and in the particulars. Attorneys must properly instruct experts on what is acceptable to talk about and what is not – while not controlling or overly influencing the experts. Attorneys cannot depend on the expert’s prior deposition experience. Rather, the firm must prepare the expert to ensure that the expert is on the same page in understanding the firm’s approach and litigation strategy.

Experts must attend in deposition to substantive and non-substantive items. The non-substantive items, for example, would involve educating an expert on the following:

  • Discuss with the expert how important it is to be well rested and not dependent on any medications that could influence the testimony, because the expert would have to disclose such facts.
  • Remind the expert that they are testifying under oath, just as though he was before a judge and jury. Experts must be credible, truthful, serious and precise at all times while testifying.
  • Remind the expert that he may request a break if and when needed.
  • Review the way a proper question should be asked, so that if the expert does not understand a question, or the question has multiple or inconsistent parts, the expert will be able to identify the sub-parts and ask for clarification.
  • Make the expert aware that opposing counsel can potentially distort and mischaracterize his opinions and, thus, should not be trusted to represent the expert’s opinions in a fair and balanced way.
  • Remind the expert to discuss only what is relevant and what was reviewed and not to deviate into areas beyond the engagement.

Holmes PLLC prepares the expert also for the substantive portions of the deposition as well.

  • Remind the expert to review thoroughly her report(s) prior to the deposition and to know exactly why she came to the conclusions contained therein.
  • Practice and discuss the weak points of the expert’s opinions and well as the strong points that will establish key elements of a case.
  • Have the expert bring her entire “work up” file to the deposition, and ensure that she remembers every page of paper, every line of data, and all material received from the lawyers or other sources. The expert must be able to identify whether she (a) reviewed and relied upon the information; (b) reviewed, but did not rely on the information; or (c) received, but did not review the information.
  • Most likely, the expert will need to have read and considered the opinions and work product of other experts, including the opposition’s experts.
  • Ensure that the expert can sufficiently articulate the basis of her methodology (e., work process and underlying assumptions) for formulating opinions. This is particularly important because of the Daubert standards.

In 1993, the U.S. Supreme Court set forth criteria for the admissibility of expert testimony in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Because it was a federal case, Daubert did not directly control state law. Daubert, however, promptly resulted an overhaul of judicial review of expert testimony in virtually every state, including Texas. Under the federal case Daubert and the many state cases following it, the trial judge can disallow (so that a jury never hears) expert testimony that does not comport with various scientific standards and credibility tests. Under the same law, appellate courts can disregard expert testimony for failing to comport with various scientific standards and credibility tests, even if a trial judge has allowed a jury to hear such testimony.

Holmes PLLC actively ensures that an expert will withstand the almost inevitable Daubert challenge – even though most of the firm’s business cases usually do not implicate scientific-causation evidence, which was the Daubert case’s original focus. An expert must demonstrate that her methodology and reasoning have scientific validity and usage outside of litigation purposes. The five most often discussed Daubert factors are: (1) whether the methods upon which the testimony is based are centered upon a testable hypothesis; (2) the known or potential rate of error associated with the method; (3) whether the method has been subject to peer review; (4) whether the method is generally accepted in the relevant scientific community; and (5) whether standards of control can apply to the method and related techniques from the method.

For instance, an expert would survive a Daubert challenge if she were testifying that a certain company (a plaintiff in a lawsuit) was unable to receive financing, such as a line of credit, because a competitor (the defendant in the same lawsuit) disparaged its business and actively lobbied the banking community not to provide financing. In this example, the plaintiff’s expert would be formulating opinions based upon test-able scientific methodology with usage outside the litigation context. She, more specifically, would be reasoning that the competitor had disseminated information to banks that caused them not to want to do business with the company seeking the line of credit. She could be wrong; perhaps other factors – such as the company’s poor credit history – in whole or in large part caused the banks not to want to do business with the company seeking the line of credit. Also, her methodology here would be one that is widely used outside of litigation; businesspeople frequently investigate why banks avoid doing business with certain companies use the same methodology as the expert has used in this example.

What if the defendant’s (competitor’s) expert in the same case had testified that banks avoided doing business with the company at issue (the plaintiff) because it was seeking a line of credit during the last quarter of 2017, which falls during the “Year of the Rooster” in the Chinese zodiac, and international banking always is unstable, jittery and risk-averse because of the “Rooster effect”? At first glance, a court may entertain a little more testimony from the expert to see if he were using logic, empirical data, banking science (or insight), or some principled methodology. The court would quickly conclude that the defendant’s expert had run afoul of Daubert and should not go to the jury for consideration. The expert’s Rooster theory can never be wrong; the Year of the Rooster in his view always disrupts all banks, all over the world. And the business community never uses this “theory” or “method” of Rooster-year correlation when investigating why banks are avoiding doing business with certain companies.

Holmes PLLC takes great care to discover facts about the opposition’s experts, such as their work up and the motivations behind their testimony, and to prepare to impeach them via cross-examination at deposition or at trial. At a high level, the firm seeks to capitalize on the opposition’s mistakes in handling the expert; the opposition frequently commits those very sins that this installment has warned against: controlling an expert, overly influencing him, showing him privileged information (now discoverable by Holmes PLLC), or engaging in other conduct that makes the expert’s testimony not credible, truthful, serious or precise. The firm uses different discovery methods to find out information about the opposing side’s experts, their work-up process (including any attorney controls), and their ultimate opinions. Once that information is reviewed and Holmes PLLC has thoroughly read the opinions and reports of that expert, Holmes PLLC will then decide if it is necessary to take expert’s deposition. This decision is important. If Holmes PLLC believes that the judge will limit the expert’s testimony at trial to just the opinions expressed in her report(s), Holmes PLLC might not want to give that expert a practice run at what exactly will be asked at trial. The firm doesn’t want to prepare the opposing side’s expert for what’s coming at trial. Additionally, taking the opposing expert’s deposition can open the door to that expert being able to offer additional opinions that could be admissible at trial, when they otherwise may not have been (because they didn’t appear in the written report).

Holmes PLLC works hard and efficiently to make the experts we hire strong in every aspect of the case – their report, their deposition, and their trial testimony – without manipulating or controlling the expert. Holmes PLLC strives to improve the expert’s communication skills, without turning the expert into the firm’s advocacy instrument. Often experts – especially those from industry, who do not regularly work as testifiers – need the firm’s gentle guidance on improving communications skills, so that they can convey successfully to juries and to the court some complex or arcane subject matter. Nonetheless, the firm must strike the right balance between adequate expert preparation and leaving the expert with appropriate space for independent work.