2.  Pretrial Preparation

Tiger Woods is a great natural athlete. But he is probably the greatest golfer of all time not because of his natural gifts alone but because of the work ethic that he pairs with it. Similarly, no matter how good you are on your feet you will never be a great cross-examiner unless you work tirelessly to master all of the underlying facts and subject matter of the expertise of the witness.

 a.  Doing your homework

Today it is easier than ever to obtain knowledge thanks to the internet. Except for medical experts in medical malpractice actions in state court actions we are provided with the identity of the expert witness to be called by the opposition. The internet enables us to find out almost everything this person has done in a professional capacity including articles written and positions attained. The internet also provides us with countless options for educational materials on virtually any area of medicine, science or engineering and typically on multiple levels from basic to highly advanced. As trial lawyers we must take advantage of these tools to learn everything we can within the time frame we have for preparation so that we can adequately test the opinions of opposing experts.Every expert opinion has some point of weakness that we can attack. Our job in the preparation stage is to find it. Fortunately, we are not alone in this search since we must hire experts ourselves to testify in the very area of expertise of the other side’s expert. This expert can be of great help but the caveat is that we must be well informed before that can happen. If you go and meet with your expert without doing your homework first the conversation will migrate to the most basic of levels. Only after you have mastered the subject matter can your expert really teach you the subtleties of the topic that will be where the weaknesses of the other expert can be found. And there are always those grey areas, especially in medicine. There is a famous story of the Dean of Harvard Medical School speaking to freshman each year and telling them that “50 % of the information that will be taught to you in the next three years is going to turn out to be incorrect. The problem is that we do not know which 50%.”  Areas of uncertainty are where you want to go with experts who testify on direct as if everything in their opinion is black and white and simple. In order to find (and more importantly understand) those areas there is no substitute for thorough preparation.

3101(d) disclosure

The days of “trial by ambush” allegedly went out when the CPLR was amended to add expert witness testimony disclosure as a pretrial requirement. However, the statute’s intent is certainly not universally fulfilled by what each side provides to the other. There are many instances in which the disclosure served is inadequate to allow for appropriate preparation. In such instances, a threat of a motion followed by a motion to compel is essential. Although many trial judges are less than receptive to such motions, they can be effective in that even their threat often leads to better disclosure. And there are cases in which relief has indeed been granted. See Syracuse v. Dio, 272 A.D.2d 881 (4^th Dep’t 2000) “The responses of plaintiff concerning her expert witnesses were ” ‘so general and nonspecific that [defendants have] not been enlightened to any appreciable degree about the content of [the experts'] anticipated testimony’ Chapman v State of New York, 189 AD2d 1075, quoting Saar v Brown & Odabashian, 139 Misc 2d 328, 334; see also, Brossoit v O’Brien, 169 AD2d 1019, 1020-1021)”. 

This is particularly important in medical cases where causation is or may be in issue. For example, an expert disclosure which tersely states that “the alleged incident is not the cause of plaintiff’s injury” should never be accepted as sufficient. If the defendant’s expert is going to testify to another cause of the injury it is essential to know more about it before your expert testifies so that it can be considered and discredited during your direct case. If you do not learn of it until the defense case begins and your witnesses have already testified it puts you at a decided disadvantage in preparing for cross-examination.

In order to properly prepare, you must not only know what the expert’s opinion is going to be but also the factual underpinnings upon which each opinion is based. This includes the identity of studies published in the medical literature, if the expert claims to rely upon such studies. See Section 4(e) below.

b.  Federal Practice

There are obviously differences between state and federal practice but nowhere is the contrast more stark than expert disclosure during pretrial preparation. Not only does FRCivP 26 require a detailed expert report and significant information about prior testimony and compensation, but you get to actually depose the expert before trial so that you can be fully prepared for cross-examination. Of course, all of this information comes at a significant price, literally. But in cases that are eventually tried it is invaluable to have the report and deposition to help prepare for the cross-examination of the opposing expert. [Part 3 coming Thursday, June 3, 2010]