“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 AssociationAmerican Bar Association

Forum on the Construction IndustryForum on the Construction Industry

2013 Mid Winter Meeting2013 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 AssociationAmerican Bar Association

Forum on the Construction IndustryForum on the Construction Industry

2013 Mid Winter Meeting2013 Mid Winter Meeting

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 BASICSWitness 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, 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

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

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