Boca Raton New York CRC Press Boca Raton Boston New York Washington London Effective Expert Witnessing Third Edition JACK V. MATSON, Ph.D., P.E. The Pennsylvania State University University Park, Pennsylvania Library of Congress Cataloging-in-Publication Data Matson, Jack V. Effective expert witnessing / Jack V. Matson. —3rd ed. p. cm. Includes bibliographical references and index. ISBN 1-56670-340-9 1. Evidence, Expert—United States. I. Title. KF8961.M38 1998 347.73′67—dc21 98-45935 CIP This book contains information obtained from authentic and highly regarded sources. Reprinted material is quoted with permission, and sources are indicated. A wide variety of references are listed. Reasonable efforts have been made to publish reliable data and information, but the author and the publisher cannot assume responsibility for the validity of all materials or for the consequences of their use. 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Trademark Notice: Product or corporate names may be trademarks or registered trademarks and are used for identification and explanation, without intent to infringe. © 1999 by CRC Press LLC No claim to original U.S. Government works International Standard Book Number 1-56670-340-9 Library of Congress Card Number 98-45935 Printed in the United States of America 1 2 3 4 5 6 7 8 9 0 Printed on acid-free paper © 1999 by CRC Press LLC Foreword With this new edition of Effective Expert Witnessing, Dr. Matson has added new information that is critical to expert witnessing in the late 1990s. In the decade since the first edition of this book was published, expert witnessing has been transformed by a series of court rulings generally concerned with the reliability, relevancy, and admissibility of expert testimony. Expert witnessing and trial strategy have not been the same since these decisions. The most important of these rulings was by the U.S. Supreme Court in the case of Daubert v. Merrill Dow Pharmaceuticals. The Daubert case actually loosened the rule for admissibility of scientific testimony; however, in this Daubert decision, the Supreme Court opened the doors for the federal judi- ciary to perform a gate-keeping function to keep unreliable scientific testi- mony from the jury. This is the real importance of the Daubert decision. This mandate for the federal courts to undertake this gatekeeping func- tion has transformed civil trial practice and has become a dominant consid- eration in trial strategy. No longer is it sufficient for an attorney to simply procure the services of an expert. He/she must find an expert who can survive the serious scrutiny of federal and state judges acting as gatekeepers. The consequences of a successful Daubert challenge are severe. Experts can be struck, meaning that they are not allowed to testify. Evidence that is key to the case may not be heard by the jury. Cases are lost. To be a successful expert, you must understand the Daubert requirements, both generally and specifically as they relate to your testimony, and you must think in the terminology and concepts of a Daubert challenge. Concern about challenges based upon the Daubert decision and its state court progeny now dominates trial strategy. This gatekeeping process is a particular concern for the plaintiffs’ lawyers because they have the burden of proof to prosecute a case. If an expert for the plaintiffs is struck, then a key element of proof may be eliminated. On the other hand, attacks based upon Daubert also will dominate defense strategy. The easiest way to win a case on the defense’s side is to prevent the jury from hearing an expert who is critical to the case. © 1999 by CRC Press LLC © 1999 by CRC Press LLC Good reason exists for the judicial branch to focus upon the reliability of expert witnesses. The role of the expert witness in the legal process is to assist the trier of fact in understanding the complex issues associated with litigation. Experts are allowed to give opinions that go to the heart of the legal issues — the very subjects that plaintiffs must prove and defendants defend. In the past, this role of the expert has been abused. It is arguable that expert testimony got out of control, extending well beyond the realm of sound methodologies to the realm of fantasy — and some experts are so good that juries believe it all. By 1998, however, the pendulum has swung far to the other side. The judiciary is applying Daubert concepts to all experts. Arguably, the civil proof standard of preponderance of the evidence is being altered by judicial gatekeepers who require extremely high confidence levels in expert testimony before they allow expert testimony to be presented to a jury. Over time, the legal system will adjust, as it always seems to do; however, the next decade could prove to be particularly difficult for expert witnesses and the trial attorneys working with experts. Whether you are a scientist, an engineer, an economist, a forensic expert or a real estate appraiser, Daubert challenges and concerns should be a central aspect of your work. If you do not understand Daubert considerations and do not recognize the implications of the Daubert decision on expert witnessing, you may fail as an expert even if you are honest and are giving reliable testimony. Daubert challenges can be mean, abusive, and unfair. Nothing less than the fate of the case is at issue. In this third edition, Dr. Matson has added two chapters that specifically address Daubert considerations. When these chapters are added to the prac- tical advice on expert witnessing, the result is an indispensable aid to expert witnessing. James B. Blackburn, Esq. © 1999 by CRC Press LLC Preface The role of the expert witness has changed dramatically in the decade of the 1990s. The United States Supreme Court decision Daubert v. Merrill Dow (1993) established a set of guidelines for scientific testimony. The most significant result of Daubert is the new role of the judge as gatekeeper. Many states have adopted the Daubert guidelines which are now being extended into nonscience, nontechnical areas. The thrust of Daubert is to eliminate junk science by imposing high standards on the methodologies used by experts to arrive at opinions. This third edition of Effective Expert Witnessing includes two major chapters on Daubert and its meaning, how it is applied, and its ramifications for expert opinion and testimony. Another major trend is the push by courts to have litigants settle cases rather than go to trial. For experts, this means that the deposition is the major focus of testimony. Thus, a new, comprehensive chapter on the mechanisms of the deposition replete with typical questions has been added. A new chapter on pretrial preparation brings into focus the latest high tech methods for presenting demonstrative evidence in the courtroom and how the expert can fully utilize these tools. The chapter on marketing also has been rewritten to add more detail on how to find and work with clients. Expert witnessing has become more challenging. Those of you who enjoy the nature of the adversarial process will want to fully understand the evolving rules of the game so that you and your clients can do the very best. This third edition was written for you. The Author Jack V. Matson is a professor of environmental engineering at The Pennsyl- vania State University. He is an expert in waste management, industrial water and wastewater treatment, hazardous waste, and air pollution and has authored over 50 publications, 5 patents, and another book — Innovate or Die!. Dr. Matson develops courses and curricula in innovative engineering design to encourage teamwork and creative problem solving in students. He also teaches and does research in environmental engineering. Dr. Matson received B.S. and M.S. degrees in chemical engineering from the University of Toledo and a Ph.D. in environmental engineering from Rice University. He also attended the University of Michigan Law School. Before entering the academic realm, Dr. Matson was a process chemical engineer for the Sun Oil Refinery, Toledo, OH; environmental engineer for the Enjay (now Exxon) Chemical Company in Baytown, TX; and manager of environmental engineering for S & B Engineers and Contractors in Houston, TX. As a consultant, Dr. Matson has participated in the design and construc- tion of numerous waste treatment facilities. Starting in the mid-1970s, Dr. Matson began giving testimony as an expert at State of Texas administrative hearings involving environmental permits. Since then, he has participated in a variety of significant cases involv- ing his area of expertise. His address is Box 408, State College, PA, 16804- 0408; phone 814-865-4014; and e-mail jvm4@psu.edu. © 1999 by CRC Press LLC Table of Contents Foreword Preface The Author 1 Baptism of the Expert Witness Facts of the Case 2 Interfacing With the Legal System Legal Procedure Pretrial Discovery Discovery Process Pleadings and Motions Documents and Tangible Evidence Freedom of Information Acts Expert Reports Interrogatories Depositions Subpoenas Evidence Witnesses The Courtroom Ve n u e Judge Jury Selection Plaintiff and Defendant Counsel and Cast Witness Line Up © 1999 by CRC Press LLC © 1999 by CRC Press LLC The Trial Opening Statements Objections Rebuttal Closing Statement and Jury Instruction Closure 3 Developing Winning Strategies Requisites of an Expert Witness Definition Functions of the Expert Witness Hypothetical Case Qualifications The Bad Expert The Good Expert Courtroom Demeanor Deposition Demeanor Interacting With Your Lawyer The Ethics of Expert Witnessing In Summary 4 Fees, Contracts, and Marketing Potential Clients Criteria Professional Societies Expert Witness Service Companies Networking Letters to Attorneys Advertising/Direct Mail Contracts Fees Summary 5 Discovery Document Production and Organization Discovery Strategy Bate Numbers Your Organization Putting the Organizational Tools To Work Discovery in Negligence Cases The Case Conclusion © 1999 by CRC Press LLC 6 Expert Opinions Under Daubert Frye Rules Daubert Test Admissibility of Expert Opinion Under Daubert The Judge as Gatekeeper Credentials Experimentation Computer Models Nonscientific Knowledge Depositions The Future of Expert Reports 7 The Deposition Predeposition Preparation The Subpoena The Setting The Attorney’s Interest Additional Pointers Typical Deposition Questions Preliminaries Opinion Questions The End 8 Daubert Challenge Fact of the Case Defendant’s Motion Plaintiff’s Response Commentary Surviving the Robinson (Daubert) Challenge 9 Preparation for Trial Changing Your Opinion Trial Theme Trial Exhibits Lawyer Preparation Summary 10 Giving Testimony at Trial The Jury and the Expert Witness Jury’s Importance Jury Composition Jury Response Table of Contents © 1999 by CRC Press LLC Direct Examination Introduction Forthrightness and Objectivity Credibility Cross Examination Under Attack Opposing Counsel’s Strategies “Yes” and “No” Answers The Use of Hypotheticals How To Handle Questions About Your Fee Protection by Your Attorney Testing Your Credentials Leading You Out of Your Expertise Use of Inflammatory Words Items Not Considered Open-Ended Questions Impromptu Questions Agreeing With the Opposition 11 Communication Psychological Factors Storytelling Emotions Leadership Without Primacy Visualization Conclusion Section II. Case Studies 12 The Engineer’s Nightmare: A Case Study The Facts The Complaint Background Startup The Lawsuit The Pleading Fact Witness Depositions Expert Reports Expert Depositions The Trial Pretrial [...]... line is that special expertise, directly related to the matter at hand, must be clearly demonstrated The use of an expert comes into play long before a case goes to trial How and when the expert is involved depends on, among other things, his area of © 1999 by CRC Press LLC expertise, the type of matter to be handled, the purpose for which he was hired, and whether he has been identified by the employing... our businessman died as a result of injuries received in the accident rather than, for example, his having © 1999 by CRC Press LLC suffered a heart attack that subsequently caused the accident Thus, a medical examiner or other qualified person confirms that death was caused by the injuries received as a result of the accident Each of these and any number of other experts may be employed at varying stages... information in response © 1999 by CRC Press LLC 3 Prejudiced He wants to get even with the opposing expert, lawyer, or litigant He has ethnic or opposite sex hang-ups that easily surface 4 Credentials are weak His expertise does not come into direct alignment with the technical issues, and he is too stubborn or embarrassed to admit it The Good Expert The good expert needs to be street smart, while possessing... the expert must answer the questions in a truthful manner How large a role should an expert play on the litigation team? Most experts feel “used” by attorneys — used like tools in a toolbox The tool is © 1999 by CRC Press LLC dragged out at the proper time and inserted in the trial to twist the bolt off, then discarded This usage discourages beneficial interactions between the attorney and the expert. .. average person Most people are not allowed to enter the courtroom and give opinions The expert witness is by virtue of specialized expertise present to do just that — give opinions The federal and state rules of court define an expert to be someone with “scientific, technical, or other specialized knowledge.” Does that necessarily mean degreed? Consider the source for expert testimony on how to saddle a... a vara (an early-day length frequently used to measure land in Texas); how a pressure cooker operates The avenues to becoming an expert are varied A trucker was recognized as an expert in air leaf suspension systems and allowed to testify when it was shown he had been in the trucking business nearly 30 years and had controlled five tractors with air leaf suspension systems He testified to the simple... Conclusions 19 To the Lawyer Hire an Expert Consultant Shortly After a Client Has Contracted for Your Services © 1999 by CRC Press LLC Early Interaction With the Case Is Important to the Expert The Expert Needs To Be Able To Place Himself on the Other Side and View the Case as an Adversary Experts Should Attend all Relevant Depositions of Both Fact and Expert Witnesses A Good Expert Will Be Able To Develop... not perform or do agreed upon items Another cause of action is negligence, in which one party violated the standard of care in the fulfillment of an obligation © 1999 by CRC Press LLC Provided there are no objections to the complaint, the opposing party, who receives the complaint, files an answer In a typical answer all claims are denied So-called affirmative defenses are presented The most common affirmative... difficulties The credentials of a good expert should at least match those of the opposing expert In the battle of experts, you do not want to be outgunned by a résumé that looks like the Manhattan phone directory A good expert acts and looks dignified He dresses in good taste and has a confident demeanor and attitude He is what he is — the expert in the field Courtroom Demeanor The expert must be able... side’s case is almost as important as knowing your own case © 1999 by CRC Press LLC The Ethics of Expert Witnessing The use of the term “hired gun” as some experts are called, is pejorative, implying the expert is not objective but shades his opinions to mesh with the side of the case that is paying for his services In reality, the expert is not a third party with total access to all information, making . paper © 1999 by CRC Press LLC Foreword With this new edition of Effective Expert Witnessing, Dr. Matson has added new information that is critical to expert witnessing. Book Number 1-5 667 0-3 4 0-9 Library of Congress Card Number 9 8-4 5935 Printed in the United States of America 1 2 3 4 5 6 7 8 9 0 Printed on acid-free paper © 1999