| Home | | | Expert Login | | | Blog | | | FAQs | | | Newsletter | | | Contact Us |
Need
An Expert?| 877.838.8464
|
By Robert Ambrogi - Editor
BullsEye Bulletin: May 2009
It happens all the time between opposing experts in litigation. One side
brings on an expert to look for holes in the work of the expert on
the other side.
But what happens when one expert exposes another expert's
work as flawed – and
both experts are working for you?
What if your
own expert comes to you and questions the methods or conclusions of another of
your experts?
Perhaps you
retained one expert as a consultant to conduct initial reviews and lay the groundwork
for your case. Later, you retained a second expert in the same field to testify.
You
present the consulting expert's work to the testifying expert as background
to be used in formulating his own opinion. The testifying expert looks at
the earlier work and proclaims, "I can't use this. The analysis is
flawed because of X, Y and Z."
At
this point, there is no option of sweeping the issue under the rug. Had the consulting
expert's work remained just that, it would not have been discoverable under the
federal rules. But once it was provided to the testifying expert, it became fair
game.
That
means that your opponent is likely both to learn about the consulting expert's
work and also to learn of the testifying expert's condemnation of it.
When
Life Gives You Lemons …
For
any litigator who ends up in this position, the best option may be
to follow that old adage about what to do when life gives you lemons. Maybe
there is lemonade to be made here.
"As the lawyer, I would use this as an opportunity
to build the testifying expert's credibility," says Andrew C. Simpson, a
corporate defense lawyer in the U.S. Virgin Islands. By that he means that he
would argue something along the lines of, "Look, he's so independent he
even criticized my consulting expert."
"I would expect the testifying
expert to explain what errors the consulting expert made and explain why the
testifying expert's opinion is more reliable because of this conclusion," explains
Simpson, who consults with other lawyers on expert-witness issues.
Darrell Stewart,
a trial attorney in San Antonio, Texas, agrees that the situation could
be used to put the testifying expert in a good light. "Certainly
it shows some independence by the testifying expert, and can be explained
as such to a judge or jury," he said. "The expert would be doing
the proper approach to bring this to the attorney's attention immediately
upon discovery."
Never the Twain Shall Meet
That said, the better route is to avoid getting into the situation
in the first place, lawyers agree. The only way to do that is to keep
from ever showing the consulting expert's work to the testifying expert.
At a minimum, a lawyer should think long and hard before making such
a disclosure.
"If the work done by the consulting expert is reviewed by the testifying
expert, and particularly if it becomes part of the testifying expert's file,
then it is discoverable, and he will be grilled about it," notes Thomas
Little, a litigator with Smith, Spires & Peddy in Birmingham, Ala. "That's
why you really have to give a lot of consideration as to what information to
share with any expert with whom you consult."
Stewart agrees. "Disclosure
to the testifying expert of the consulting expert's work would therefore make
it available to the other side." The
lawyer can avoid this from occurring through management of the case
and of the experts, Stewart says. But if it does occur, "the testifying
expert would be tested on it by sponsoring lawyer and again by opposition."
Seek
and Ye Shall Find
None of the attorneys interviewed for this article had ever run into
a conflict between their own testifying and consulting witnesses. The
reason for that, they all agreed, is that they take their own advice
and avoid allowing one expert to see the other's work.
An economics professor
who regularly serves as a litigation expert suggests that attorneys
are well advised to keep their experts apart. If testifying experts
did routinely review the groundwork laid by consulting experts, he
suspects, they would find no shortage of weaknesses.
Ashok Abbott, associate professor
of finance at West Virginia University, says he is often retained as
a consultant in litigation for the precise purpose of reviewing the
work of experts on opposing sides. As many as half the reports he reviews
are questionable, he finds.
He characterizes many expert reports as providing "an
illusion of precision." By
that he means that the expert may apply appropriate methods to a problem
but employ too small a sample of data to be accurate.
In some cases,
the expert's work is flawed simply due to negligence or mistake. But
in others, he believes, the expert "whittled down the
sample" in order to achieve a particular answer or "stretched their
findings to fit the case."
Do As I Say, Not as I Do
Another
expert witness once found himself in the situation of being asked to
incorporate the faulty work of an earlier expert. Thomas Roney, principal
of the Dallas, Texas, economic consulting firm Thomas Roney LLC, was contacted
to testify in a franchise case.
The
attorney showed him the work of an earlier expert and suggested his
testimony should mirror the earlier expert's findings. But when he looked
at the report, he found that it was not only flawed, but dated, having been
done more than five years earlier.
Unfortunately,
this was not a case in which the testifying expert went on to redeem
the earlier expert's faulty work. The attorney was not happy with Roney's
conclusion and so Roney had no choice but to turn down the case.
Between a Rock and
Hard Place
While lawyers indicate that the main reason not to reveal a consulting
expert's work to a testifying expert is to protect the earlier work from
discovery, there is another reason, defense lawyer Andrew Simpson believes.
If
the second expert testifies based on the work of the first expert,
then the testimony is based on hearsay. The federal rules of evidence allow
this, Simpson notes, but it creates a quandary.
"The expert's reliance upon that hearsay does not establish the foundational
fact established by the hearsay," he explains. "You still have to
prove that foundational fact, which is probably going to cause you to put the
consulting expert on the stand."
Lawyers often overlook the distinction
between allowing an expert to rely on hearsay and the need to prove
the hearsay in some other way, but it is a critical distinction, Simpson
contends.
He sums
it up this way: "I really don't want my testifying expert to
be relying upon hearsay from a consulting expert."
IMS Expert Services is the premier expert
witness and litigation consultant search firm in the legal
industry. IMS is focused exclusively on providing custom expert
witness search services. We are proud to be the choice of over
95 of the AmLaw Top 100.
Call us at 877-838-8464.
View All Articles | Newsletter
Signup | Contact Us
