By: Keith Jackson
RILEY & JACKSON, P.C.
National Business Institute Seminar
July 30, 2009
Testimonial evidence constitutes the bulk of an attorney's presentation in most trials. A well-organized and cohesive presentation of testimony helps establish the attorney's theme for the case, develops issues framed for the jury during opening statements, and allows the jury to begin assembling the key elements of an attorney's case in the jurors' own minds. In contrast, a presentation of testimony that is not logically ordered given the circumstances of the case or that is plagued with objectionable questions can confuse the jury and cause the jury to begin to doubt the merits of the case being presented.
In this seminar, we have been asked to discuss testimonial evidence with a focus on lay witnesses and expert witnesses. For expert witness testimony, we have been asked to discuss the process of retaining an expert, preparing an expert to give testimony, deposing an expert witness, and handling a court appointed expert.
A. LAY WITNESS TESTIMONY
Because the scope of our presentation does not encompass many of the familiar Rules of Evidence such as those addressing relevance and hearsay, we have focused upon (a) the competency of witnesses, (b) the personal knowledge requirement, and (c) opinion testimony by lay witnesses. Although equally applicable to lay witnesses and expert witnesses, we have also elected to include in the written materials and may cover during the presentation, time permitting, general principles governing cross-examination.
- WHO IS COMPETENT TO TESTIFY-RULE 601
The Alabama Rules of Evidence contain an express presumption that all persons are competent to testify as a witness at trial unless otherwise stated in the Rules of Evidence. Ala. R. Evid. 601. Although this presumption has routinely taken for granted recently, the adoption of this rule in 1996 reflected a significant change in the then-existing laws and rules governing the competency of witnesses in Alabama.
One of the statutes abrogated by Rule 601 was Alabama's now obsolete Dead Man's Statute, previously codified at Ala. Code § 12-21-163. Under the Dead Man's Statute, a witness was not qualified to testify if, for example, the witness was a party to a transaction with the deceased and the witness was offering testimony against the interest of the deceased when the deceased person's estate was interested in the lawsuit. See e.g., Shoen Vogel ex relShoen Vogel v. Venator Group Retail, Inc., 895 So. 2d 225 (Ala. 2004).
The advisory committee for Rule 601 noted that the Rule in its current form acknowledges the prevailing sentiment that very few persons are incapable of giving testimony useful to the trier of fact. The move away from grounds of absolute incompetency reflected by Rule 601 was mirrored with the development of other rules and statutes applicable to testimonial evidence. For example, spouses were once declared incompetent to be witnesses either for or against the other spouse. Spouses are of course now deemed to be competent to testify for or against a spouse, but that testimony is subject to the marital privilege.
Since the adoption of Rule 601, trial courts have been vested with broad discretion to determine whether a particular witness is competent to testify. This discretion is often exercised in cases when children are called to testify. There is no particular age under Alabama law over which a child is presumed to have the mental capacity to testify truthfully. Likewise, there is no age under which a child is presumed to lack the required mental capacity. Rather, trial judges must make a determination on a witness by witness basis as to whether the witness is competent. Trial judges have broad discretion in making this determination because the judge has the opportunity to see the witness and view his or her demeanor at trial.
The case law in Alabama since Rule 601 was adopted suggests that trial judges will routinely determine that a child is competent to testify. The overriding determination made by the trial judges appears to be whether the child understands what it means to be obligated to tell the truth. Appropriately in our opinion, it appears most trial judges are determining that most children called to testify do have an understanding as to what it means to have an obligation to be honest and speak truthfully.
The more difficult inquiry for a trial judge into the competency of a witness arises when the witness, regardless of age, suffers from a mental defect. Previously, a witness was necessarily deemed incompetent if the witness was an "idiot" or "lunatic". Ala. Code § 12-21-165(a). After the adoption of Rule 601, a witness is no longer deemed incompetent for these reasons alone. Rather, the trial judge must exercise his or her discretion and determine upon an examination of the witness whether that particular witness is competent to testify.
Rule 601 also abrogated the prior law that a witness who had been convicted of perjury or subornation of perjury was incompetent to testify, a law that was previously codified at Ala. Code § 12-21-162(a). As with convictions of crimes involving dishonesty, a prior conviction of perjury or subornation of perjury may still be used to impeach the credibility of the witness. That conviction standing alone does not render the witness incompetent, however.
Although including the question of whether a witness understands and can communicate orally in the English language under a section on witness competency is a misnomer, the simple truth is that a growing number of litigants in Alabama either do not speak English as their first language or do not speak English at all. This has resulted in the use of interpreters or translators, which have long been utilized in litigation involving foreign companies, becoming more commonplace in both criminal and smaller personal injury actions. In criminal and juvenile proceedings, when the Defendant, juvenile, or a witness informs the court that he or she does not speak or understand the English language, the court may appoint an interpreter. If the court determines that due process considerations require an interpreter, the court no longer has discretion regarding whether to appoint an interpreter and must appoint a qualified person to interpret the proceedings for the Defendant, juvenile, or witness requesting assistance. Ala. Code § 15-1-3.
Alabama law is well-developed in the area of interpreters for the hearing impaired and speech disabled. See Ala. Code § 34-16-1, et seq. The language of these statutes plainly indicates that these provisions were intended to apply to interpreters for those who are hearing impaired or speech disabled. The definitions that apply to the act are broad enough, however, that the act likely applies in the context of a party or a witness who does not understand or cannot communicate effectively using the English language. Specifically, the Act defines "consumer" as any person who "requires the services of an interpreter or transliterator to effectively communicate signed or spoken discourse." Ala. Code § 34-16-3(3).
Our seminar presentation on this issue will be brief and will not attempt to delve into developing law applicable to interpreters or translators who are hired to assist in litigation involving a party or witness who does not understand or cannot communicate effectively using the English language. We have included this subject in our presentation solely because this is an area of evidentiary law that, in the context of non-English speakers, remains largely unsettled, and it is an area the courts will be called upon more regularly in coming years to address. The limited amount of litigation in which we have been involved that has included testimony from witnesses who do not speak the English language as their first language have been handled by agreement among counsel. We have managed to find a service for translation with which all parties are comfortable, and the translation cost is typically paid by the party proffering testimony from the witness requiring the translator.
2. THE PERSONAL KNOWLEDGE REQUIREMENT.
There is no dispute regarding the fact that a witness can only testify to matters about which the witness has personal knowledge. Ala. R. Evid. 602. Of course, this Rule is subject to Rule 703 governing the testimony of expert witnesses, which is more fully discussed in a separate section in this paper.
We have included a brief description of the personal knowledge rule simply to illustrate that the rule is not applicable to certain documents or other evidence that falls within a hearsay exception. For example, a witness may testify regarding the contents of a document containing a statement of personal or family history even if that witness does not have personal knowledge of all the information set forth in the document. The document itself is admissible assuming it meets other evidentiary requirements as an exception to the hearsay rule. Ala. R. Evid. 804(b)(4).
A more common example arises in our cases when we have a witness testify to a statement made by the defendant in a case that constitutes an admission by the defendant. To oversimplify the matter, if a defendant in an automobile collision case tells a third party that the defendant ran a red light and caused the collision, the third party may then testify regarding the defendant's statement in this regard as it is an admission by a party opponent. The third party need not possess personal knowledge of whether the defendant in fact ran the red light. The third party need only be able to testify that he or she heard the defendant say that the defendant indeed did run the red light.
3. LAY WITNESS OPINIONS -OKAY OR NOT OKAY?
Opinion testimony offered by lay witnesses is governed by Ala. R. Evid. 701. Rule 701 establishes a two-part, conjunctive test for determining whether a lay witness may offer opinions or inferences. A lay witness may only offer such testimony when the opinion or inference about which the witness will testify is (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue. Id.
The first requirement set forth in Rule 701 is simply a restatement of the "personal knowledge" rule contained within Rule 602. A more fertile ground for argument at trial over whether a witness who is not an expert may offer an opinion is found in the second prong of the two-part test. A judge is vested with discretion in determining whether any opinion offered by a lay witness would be helpful to a clear understanding of his or her testimony or to the determination of a fact in issue.
Because Rule 701 mirrors the corresponding federal rule, meaningful guidance can be obtained from the advisory committee's note for Fed. R. Evid. 701. That note indicates that opinions should be excluded as not being helpful if they are "meaningless assertions which amount to little more than choosing up sides." A lay witness will typically not be allowed to testify that one party is liable or at fault or about the intent or lack of intent of a party. A lay witness may give an opinion, however, if the witness is unable to relay facts to the jury well enough to place the jurors in as good a position as the witness was in to reach an opinion or to draw a conclusion. For example, a lay witness has been permitted to give an opinion as to the age of tire marks. Matthew Bros. Constr. Co. v. Lopez, 434 So. 2d 1369 (Ala. 1983). It is also appropriate to allow a lay witness to testify that another person was drunk as long as the lay witness perceived the events. Burke v. Tidwell, 211 Ala. 673, 101 So. 599 (1924).
4. GENERAL PRICIPLES GOVERNING CROSS-EXAMINATION
Although not included on the seminar itinerary, we have included in the written materials a discussion on cross-examination as it is a vital part of all lay and expert witness testimony. Whether we cover the topic during the presentation depends upon the available time.
A very wise and experienced law school professor once told me that I should always follow the primary rule of cross-examination, which is "if your lips are moving, you are probably making a mistake." Although the professor was exaggerating, my subsequent 15 years of litigation experience have allowed me to prove his point to my detriment more than once. It has been easy for me to determine when evaluating my own cross-examinations after the trial is over and from watching cross-examinations of other attorneys that, regardless of an attorney's skills or experience, the temptation remains to spend too much time and to attempt to make too many points during cross-examination.
To prepare for a thorough and sifting cross-examination, a practitioner must have a working familiarity with Rule 611(b). Cross-examinations in Alabama are not limited to subject matters broached during direct examination. Rather, the appropriate scope of any cross-examination covers "any matter relevant to any issue" and also to any matters "affecting the credibility of the witness". The only time cross-examination is limited to the subject matter of direct examination or the witness's credibility is when a party calls an adverse party or an officer, director, or managing agent of a public or a private corporation or a partnership or association that is an adverse party or when a witness is identified with an adverse party. Ala. R. Evid. 611(b).
All avenues for attacking the credibility of a witness are naturally open to an attorney engaging in cross-examination. The overriding rule is that the testimony the cross-examining attorney is attempting to elicit must be material and relevant to the issues in the case. As technical issues involving cross-examination are largely elementary in nature, we will devote most of our time on the question of how best to conduct a cross-examination that is both thorough and that makes your key points to the jury.
When we are preparing cross-examinations of witnesses we believe will be problematic for us at trial, we are always mindful of the areas of testimony the witness will probably offer and for which opposing counsel has likely prepared demonstrative aides or exhibits. Whenever possible, an attorney should utilize the exhibits and evidence of the opposing party during a cross-examination. This is particularly true when conducting the cross-examination of an expert witness. Making the decision to use the other party's exhibits or evidence requires that the attorney make the appropriate judgment call as to whether the exhibit or evidence is of such quality or has had such an impact upon the jury that it would be damaging for the cross-examining attorney to show the exhibit for evidence to the jury again.
In the right circumstances, however, utilizing the exhibits and evidence of the opposing party can neutralize any impact the exhibits or the evidence may have had upon the opposing party. If the exhibit or evidence can be used to support an area where you know that you can inflict damage on either the substance of the testimony or the credibility of the expert witness, that opportunity must be taken. In the minds of the average juror, utilizing the other party's exhibits or evidence effectively and in the right circumstances can suggest or in some cases establish to the juror that the exhibit or evidence is not harmful to your case and does not have the value to the other side that the other side's attorney has suggested it has.
The art of cross-examination is a subject matter with such depth that it is taught as a one-hour class in many law schools. The subject matter cannot be covered as a portion of a one hour presentation, so we will take this opportunity simply to remind you that much has been written about Irving Younger's "Ten Commandments of Cross-Examination". These "commandments" now appear in many different forms, depending on who publishes them. By and large, however, there are recognized guidelines that are absolutely necessary for a practitioner to achieve even modest goals when cross-examining a witness.
In no order of importance, we have found the following guidelines to be extremely helpful during cross-examinations:
1. Be prepared.
While this sounds simplistic, we have noticed in our practice that many attorneys launch into a cross-examination without knowing more of the facts about which the cross-examination will occur than the witness. Particularly in the cross-examination of an expert witness, it will not be possible for an attorney to have a grasp of complicated medical or scientific principles that equals that of the witnesses. It is absolutely possible, and I would suggest necessary, for the attorney to have a greater grasp of the details of the case than the witness, however. Always remember that you as the attorney are being evaluated by the jury during your cross-examinations just as you are in every aspect of your case. You cannot be vague and you cannot allow the jury to infer that you are not as concerned about the details of the case as the witness whose cross-examination you are conducting. Particularly when deposing expert witnesses, an attorney must delve into every relevant background fact, including the witness's employment history, his or her prior testimony, his or her education, etc.
2. Know what you hope to achieve.
I do not know of any author or commentator regarding cross-examination who was more effective than Irving Younger. The adage "make three points and sit down" apparently originated with Professor Younger and is still repeated today. While this is a legitimate goal in many cross-examinations, attorneys will often discover that they need to spend time with the witness to develop several critical aspects of the case so as to counter the impact of the direct examination. Even in those instances when it is necessary to make more than "three points and sit down", the attorney must know exactly what he or she hopes to achieve from the cross-examination.
In our practice, we have a habit outlining anticipated cross-examinations well before trial begins. As we become more familiar with the details of the case during trial preparation, we use that outline and actually write out questions we intend to ask during cross-examination. As the trial progresses, we manipulate the outlines during the nights of trial so that, when the time comes for the cross-examination of a witness, we are as prepared as we can be and have developed a presentation that is consistent and reflects the themes of our case that have been developed during the trial and that makes use of meaningful details that have been presented to the jury.
In certain instance, you may determine that you have only one objective during a cross-examination, particularly if you are cross-examining an expert witness. As plaintiffs' attorneys, when we have determined that our case-in-chief has gone well and that the defense expert has only inflicted minimal damage, we often make the calculated decision to limit the scope of our cross-examination to attacking the credibility of the expert without delving again into the subject matter with which the expert is familiar and comfortable. In one instance, we conducted a twenty minute cross-examination of a physician expert who testified on behalf of the defendant in a medical malpractice case. Our cross-examination was limited to getting the physician to commit to the fact that, in his own medical practice, he relies upon four areas of information he gathers when creating a differential diagnosis. The physician freely acknowledged that he looks at the medical chart, that he conducts his own assessment of a patient, that he talks to the patient to get subjective information, and that he talks to the family members to get subjective information. He also agreed that all four of these areas can be very important in reaching medical conclusions and opinions regarding his patient's diagnosis and prognosis.
Once the physician had agreed to these very simple facts, we utilized testimony we had obtained from the expert during his deposition. Although the expert had reached what he said was his final opinion that the defendant in the case had not breached the applicable standard of care before his deposition, the expert also had to admit during his deposition that he had only reviewed two depositions, a portion of the medical chart, and three secondary articles that had been provided to him by the defense attorney. Once this was brought out during cross-examination and was contrasted with the fact that the witness had not reviewed the family members' deposition testimony or testimony of other healthcare providers and had not looked at significant portions of the chart, we believed the expert was effectively neutralized, a suspicion that was confirmed by the jury after the trial.
In a more recent example, the defendant in a medical malpractice case elicited testimony from a nurse during the latter part of his case-in-chief. We had struggled for three weeks with how to cross-examine the nurse, and we still were not satisfied with the approach we had chosen to take up until the time the nurse testified. When the nurse testified at trial, however, she testified that our client, who was suffering from an epidural abscess at the time he was hospitalized, had suffered an injury from "a fall". Prior to this nurse's testimony, the jury had heard six days of testimony regarding how our client's condition developed, and there had been no mention of any fall as no fall had occurred.
Our cross-examination of that nurse was limited almost exclusively to asking her to confirm for the jury that her understanding was that our client had fallen and that his fall had caused his back injury. She confirmed that again for the jury. After making a couple of minor points, we completed our cross-examination within 5 minutes. When we spoke to the jury after this trial, we learned that the jury completely disregarded everything the nurse had said simply because the nurse had one key fact incorrect.
3. Be patient.
Being patient during a cross-examination seems antithetical to the idea of making the key points and finishing as efficiently as possible. During a cross-examination, however, you cannot simply jump to your key points. You have the opportunity with leading questions to lead the jury one small step at a time down the same path you are taking the witness. Be mindful of gauging the importance of a particular point and determine exactly what steps it will take to make that point effectively to the jury well before the cross-examination occurs.
4. Lead, lead, and lead some more.
The reason so many people say "always ask leading questions" during cross-examination is because you should always ask leading questions during cross-examination. This allows you to shape, guide, and control the testimony. The only difficult part of following this guideline is not to become tiresome. Attorneys often misapply this principle by only asking questions that end in phrases such as "is not that true" or "isn't that correct". This type of questioning not only risks making the cross-examining attorney look overbearing, but it can also put even the most attentive jury into a temporary coma.
Phrasing your questions in a more conversational tone while still asking leading questions is a more effective means of making your points to the jury. For example, rather than asking a defendant in an automobile collision case "and you saw the stop sign, isn't that correct", a more effective means of questioning may be to make the same point by asking, for example, as you were driving, you were pay attention to traffic on the roadway? And you were paying attention to the signs on the roadway? As a careful driver, I assume one of the most important things for you to look for is whether an intersection you are approaching has a red-light or a stop sign? As you were driving down the street on this afternoon, you were paying attention? And your visibility was clear? And there was no construction in the area, the sun was out? As a careful driver, you would have been looking at this specific intersection (where the collision occurred) for a red-light or a stop sign? And we know today that there was a stop sign at that intersection? But you did not stop at that stop sign, did you?
This series of questions takes slightly longer and makes that same point as the more traditional "isn't that correct" question, but it makes for a much smoother approach from the jury's perspective. This style of leading question can, in the right circumstances, be much more interesting to a jury and bring the jury along with you more effectively than the more direct, blunt method of asking leading questions to elicit the same information.
5. Know who you are and use only your own style.
If you have tried a case, you have already started developing your own style of litigation with which you are comfortable. Watching other attorneys can be very helpful and is an important part of developing skill as a trial lawyer, but it is always a mistake to try and mimic another lawyer.
6. Know when to sit down.
One of the hardest things for us to do during a cross-examination is stop. At times, we have realized only part of the way through our cross-examination outline either that we have done everything that we can do with the witness or that the witness is winning the day. As we have conducted more cross-examinations, we have gotten better at adapting and making decisions on the fly based on how the jury is likely perceiving the witness during cross-examination. In the earlier years, however, we were as guilty as any in spending too much time with cross-examination after we had already made our points or had already determined that our cross-examination would not be effective as we had hoped.
This is a problem that can continue to plague even the most experienced trial attorneys. I recently watched an extremely gifted medical malpractice plaintiff's attorney proceed onward after he had obtained a monumental admission from a hospital's corporate representative, who also happened to be the hospital's last witness in this case. The first question asked by the plaintiff's attorney was "if I am reading between the lines of your testimony correctly, ma'am, you agree with me that your nurses breached the standard of care in their treatment of (patient x), is that right?" The corporate representative sat silently for several seconds, looked at the defense lawyer, and finally responded that "yes, I do believe care was provided by our nurses that did not meet the required standard of care."
Reading these words in print, it is very easy to see that the plaintiff's attorney should have ended the cross-examination of the witness at that point. This was the corporate representative who had just admitted liability. That is as close to a Perry Mason moment I have ever seen in a trial. There are two clear times at which to stop a cross-examination, and one of those is when the witness has been completely been discredited or has been a monumental concession. There was no need for overkill with that witness, and additional questioning in that particular case did nothing more than allow the jury to begin to forget the concession made by the witness. All of us in similar circumstances will potentially make the same decision, however, so it is very important to be mindful before a cross-examination begins that you need to stop the examination if you obtain a comparable suggestion concession from the witness.
We mentioned one of the two times when an examination should end, which is when a major concession has been made or when a witness has been discredited. The second time when a cross-examination should end is much more difficult for an attorney to acknowledge. When the witness is winning the battle regardless of which flank you attack, the prepared attorney must be willing to recognize defeat and end the examination. Rather than simply stopping, however, a more effective means of ending the examination may be to retreat to a common ground where you know the witness will agree with the question you are asking. Even if the common ground is an area that does not help your case, as long as you choose an area that does not hurt your case, the jury may be left with the perception that you are satisfied with your cross-examination when you stop. If you simply give up and end the examination after the witness has made yet another point at your expense, in contrast, little doubt will be left in the minds of the jurors that the witness has won the battle.
7. Have everything you need within reach.
We have watched some attorneys from whom we have learned began their cross-examinations with no paper, folder, or pen in hand. They have simply walked to an area near the jury box or to the middle of the courtroom and proceeded with asking a series of questions. This style of questioning can be very effective under the right circumstances and when the attorney knows that he or she will not need to reference any evidence or exhibits.
In contrast, we have seen attorneys take the same approach only to become flabbergasted when they begin to search through the piles of materials submitted into evidence or through exhibits in an attempt to counter testimony that was not anticipated. It is easy to see from watching the jury that jurors quickly lose interest when an attorney must search for material, outlines, or evidence.
Our preferred approach is to take to the podium our outline of questions only. If we anticipate the need or even the possibility to reference evidence that has been submitted during trial, we make an effort to flag or otherwise mark the evidence, or in some cases to pull the evidence out of the stack and lay it aside by the court reporter, so that we can retrieve the evidence quickly when circumstances require us to do so. Of course, we also have exhibits prepared for the cross-examination, but we either leave them on counsel table or have them leaning against the wall in the case of blow-ups. By using a numbering system for our exhibits that correspond to numbers on our outlines, we can quickly go to blow-ups if and when the testimony given by the witness on cross-examination requires that we utilize such an exhibit.
In the example discussed above where the defense expert had not reviewed critical deposition testimony or portions of the medical chart before reaching his opinions supporting the defendant doctor, we gathered all of the pages of deposition testimony and pages of the medical records that the doctor had not reviewed before giving his opinion. Taking these with us to the podium to begin our cross-examination would have been clumsy and would have made for a sloppy presentation. It also may have tipped off the expert as to what we were planning. When we reached the appropriate point in our cross-examination, we simply walked to the first pew in the courtroom, picked up the stack, placed the very large stack on counsel table, and asked the doctor to confirm that he had not read anyone of the 1698 lines of testimony or approximately 70 pages of medical records that were contained in the stack.
8. Know your audience.
All of us would admit that it is extremely gratifying to "win a point" during cross-examination when the point we have won strikes at the very heart of the specialized or technical knowledge possessed by the witness. Unfortunately, your audience is not the witness, but the jury. If you are attempting to make a highly technical point that will be lost, you must find a way to present the information in a manner that the jury can understand. Never lose sight of who is making the decision, and always structure your cross-examination in a way that the jury can follow.
9. Know all Rules of Evidence.
If your cross-examination is going well, your opponent will find a way to object to something. It is very important to be prepared for this objection and to have a mastery of the rules that allows you to respond quickly and effectively so that your cross-examination can proceed while the jury is still interested.
10. Know your judge.
Every judge is different. Some judges throughout Alabama will restrict your cross-examination to some degree, and some will give you free reign. If you have never tried a case before a judge who will be sitting in a trial in which you are involved, do everything you can to gather as much information as possible about the judge and how the judge conducts trials. There are some judges we know who would be insulted if we presented copies of any rule of evidence in response to an objection. There are other judges we have found who very much like to see copies of the rules as they do not have the same grasp of the Rules of Evidence either because of their background or their time on the bench. Never approach a witness with a document without asking permission from the judge unless you know the judge does not require such permission. Never approach the bench without asking the judge's permission unless you know the judge does not require such permission. The last place you want to be is standing in front of the jury during an otherwise effective cross-examination being admonished by a judge for trying to show a document to the witness in a manner that a judge perceives to be a breach of courtroom decorum.
B. EXPERT WITNESS TESTIMONY IN LESS THAN 30 MINUTES.
Attempting to cover the subject matter of retaining an expert, preparing him or her to give testimony, and deposing the opposing experts in 1/2 of a 1 hour presentation is obviously not possible, but we have summarized in the written materials some very basic and very general guidelines that should in our opinion be followed.
1. Retaining an Expert
While the benefit of preparing an expert for deposition is readily apparent, at least an equal amount of work should go into retaining the appropriate expert for a number of reasons. First, depending upon the type of case in which you are retaining an expert, there may be statutory requirements that the expert must fulfill in order to be qualified. For example, we handle at our firm medical malpractice cases. The Alabama Medical Liability Act sets forth very specific criteria that an expert must meet in order to be qualified to criticize the care of a healthcare provider. These criteria are routinely litigated both during trial and on appeal. Only by insuring as best as possible that the expert the attorney is considering retaining fully meets the enumerated criteria can the attorney be certain he or she is not inadvertently creating a possible summary judgment or appeal issue that may be fatal to the case.
Beyond the obvious qualifications of the expert witness, however, there may be any number of issues lurking beneath the surface that should be explored before an expert is retained. Attorneys should always question potential experts bluntly and forcefully about any issues the potential expert may not freely admit. Always keep in mind that you are interviewing a candidate for a job, and if the potential expert has told you that he or she will support your theory of the case, that expert wants the job. You pay them; they do not pay you.
The many areas of inquiry that should be explored with a potential expert should be whether the expert has been censured, sanctioned or otherwise disciplined by any trade association or regulatory body in the expert's industry. As an example, again in the context of a medical malpractice case, a concerted effort has been made during the past several years to have various physicians' academies censure or discipline their members for offering expert testimony critical of a treating physician who is a defendant in a malpractice case. This discipline typically is purportedly based on a "finding" by the governing body of the academy that a physician has testified as an expert against another physician and has offered opinions that were not fairly and accurately based upon available information.
Although we have found this type of discipline to be an absurd abuse of the academy's purpose and wholly lacking in merit, a jury would never understand and indeed could never be told that the discipline is a result of a targeted pro-doctor effort at neutralizing physicians who will testify as experts for plaintiffs in malpractice cases. If we determine that a potential expert has been disciplined in this manner, we simply cross the expert off the list and move on to the next candidate.
It is also extremely important in our opinion to ensure in most cases that the potential expert does not earn a majority of his or her income by providing expert testimony. There are rare exceptions to this general rule, but by and large experts who are "in the field" and working every day in situations similar to those presented by the lawsuit at issue will be more persuasive than professional experts, who are far more likely to be viewed as "hired guns" by a jury.
Finally, it is imperative that you explore your potential expert's prior testimony on issues similar to those presented in your case. Looking for obvious conflicting testimony usually will not be fruitful, but by reviewing depositions of your potential expert given in other cases you may determine that your expert is prone to testify in one manner or another. For example, some expert witnesses cannot resist the temptation of exaggeration. We reviewed three depositions previously given by a potential expert in construction defect cases over several years. In each of those depositions, the potential expert testified that the construction defects he saw in that particular case were the worst construction defects he had ever seen. Although it is certainly possible that this potential expert simply kept seeing construction defects that were worse and worse, this type of testimony if handled correctly by the defense would have been very damaging to the expert's credibility.
Once you are satisfied with the expert's qualifications and background, you should also delve into whether the hourly rate charged by the expert for litigation work is at least arguably comparable to the fee they make doing their "regular" work. For example, if you hire a nurse expert who makes on average throughout a year $35.00 per hour, but he or she charges $250.00 per hour for expert work, that may seem out of balance to a jury and may open the door for an argument by the other side that the expert will say anything to get the expert work because it is so much more lucrative.
2. Preparing an Expert for Deposition
If there are complete grab bags in litigation, determining on the front end how easy or difficult it will be to prepare an expert for deposition is certainly one of them. By and large, a rule of thumb is that the more qualified an expert is, the more difficult it may be to prepare that expert for deposition.
The most elementary part of preparing an expert for deposition, and in some types of cases one of the most difficult, is ensuring that the expert completely and accurately understands the facts of the case. In a residential construction case, this is not hard to accomplish, but in a malpractice or products case it can be. It only takes a mistake on one critical, or often not so critical, fact for the expert to lose credibility in the eyes of the jury. On rare occasions, we have been concerned enough about our experts' ability to remember key facts without spending several minutes flipping through notes that we have prepared Rule 26 Disclosures that spell out in detail, rather than the more commonly used general language, every opinion and every fact up which every opinion is based for ease of reference.
In certain types of cases, you may have a problem preparing your expert is a standard of care expert and has been deposed in other jurisdictions but is not accustomed to dealing with Alabama attorneys.
At the risk of appearing to pander, our impression is that the Alabama medical malpractice defense bar is comprised of some of the best malpractice attorneys in the country. This observation is borne out by war stories from other plaintiffs' attorneys who have handled malpractice cases, as we have, in other states.
If you have hired a standard of care expert who has been deposed so many times in other states that the expert approaches deposition preparation with a cavalier attitude, you have a potential disaster waiting to happen. Dealing with this attitude often can only be accomplished by ensuring that you have handled the first task, which is making certain the expert is well-versed in the facts. Many will not be because they have testified so many times that they think they are good at it. Many times they are not.
Other types of experts can present easier preparation tasks in one sense as their testimony may be limited to a very limited fact set. An accountant retained to calculate a diminished earning capacity and then reduce the calculation to present value, for example, needs only a firm grasp of the injured party's pay history and any testimony regarding future promotions, cost of living raises, deferred compensation plans, etc.
Regardless of whether your expert is one who needs a grasp on hundreds of documents or a few key pieces of information, however, their opinions will in some way likely be attacked with a Frye or Daubert motion, depending on whether your case is in federal or state court. To prepare any expert adequately for a deposition, you must be familiar with which standard applies to the expert's testimony and must ensure that your expert is prepared to provide the bases for any opinions offered.
In federal court, expert testimony is subject to the standard set forth in Daubert v. Merrell Dow, 509 U.S. 579 (1993). Managing the Daubert criteria is generally relatively straightforward except in cases such as malpractice cases where an expert's opinion is based primarily upon experience.
Daubert's role as properly utilized is to ensure "that the courtroom door remains closed to junk science." Amorgianos v. Nat'l RR Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002). This purpose was found by the Sixth Circuit not to be served by excluding testimony from a physician in a medical malpractice case that was supported by the physician's extensive relevant experience. Dickenson v. Cardiac and Thoracic Surgery of Eastern Tennessee, P.C., 388 F.3d 976 (6th Cir. 2004). In Dickenson, the trial court excluded proffered testimony of the Plaintiffs' medical expert regarding care provided by one of the Defendants, Dr. Robert Rosser. Id. at 977-78. The Plaintiff alleged that the decedent's injuries were caused by Dr. Rosser's premature removal of the decedent's ventilation tube following surgery. Id. at 978.
The Plaintiffs' expert witness, Dr. Dudley Johnson, submitted an Affidavit into evidence in which averred that he was involved with extubation decisions on almost a daily basis. Id. at 978. Despite Dr. Johnson's extensive experience, the trial court did not allow Dr. Johnson to testify regarding the medical services provided by Defendant Dr. Rosser on the basis that Dr. Johnson's testimony was unreliable. Id. at 979.
In reaching its conclusion, the trial court found that Dr. Johnson was a cardiac thoracic surgeon, not a pulmonologist. Dr. Johnson was not trained in pulmonology. Dr. Johnson had never been qualified as an expert witness in a lawsuit against a pulmonologist, and his "deposition revealed that he knows very little about ventilating medical equipment or the settings to be used." Id. Additionally, Dr. Johnson had never written an article on pulmonology, and he could not identify any articles about pulmonology that he had read. Id. at 979-80. There was no peer review regarding Dr. Johnson's opinions regarding Defendant Dr. Rosser's negligence, and Dr. Johnson could not identify what journals were authoritative or that he had read or considered in arriving at his opinion and his methodology. Id. at 980. The trial court found that Dr. Johnson did not demonstrate a familiarity with accepted medical literature or published standards in the area of pulmonology in order for his testimony to be reliable under the Daubert standard. Id.
Applying the abuse of discretion standard, the Sixth Circuit Court of Appeals reversed the trial court's decision to exclude Dr. Johnson's testimony. Id. at 982. The Appellate Court made note of Dr. Johnson's extensive experience in managing patients who were on ventilators and found that the role of Daubert is not served by excluding experience-based expert testimony such as Dr. Johnson's expert opinion. In fact, the Appellate Court noted that "[s]uch exclusion is rarely justified in cases involving medical experts as opposed to supposed experts in the area of product liability." Id., citing Daniel W. Shuman, Expertise in Law, Medicine, and Healthcare, 26 J. Health Pol. Pol'y & L. 267 (2001) ("characterizing the effect of the Daubert and Kumho Tire cases on claims of medical expertise as 'much ado about little,' while noting that these cases have had a significant effect on toxic tort and products liability litigation").
In reaching its conclusions, the Sixth Circuit noted that the evidentiary rule applied in Daubert "expressly contemplates that an expert may be qualified on the basis of experience." Id. at 980 (emph. In original) (citations omitted). The court took note of Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). In Kumho Tire, the Court observed that "no one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience." Id. at 156. The Dickenson court also acknowledged an Eighth Circuit decision that "[t]here is no requirement that a medical expert must always cite published studies on general causation in order to reliably conclude that a particular object caused a particular illness." Id. at 981 (quoting Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001).
The Eleventh Circuit has found that the Daubert factors are not to be applied rigidly, but are "instead to serve as guidelines." United States v. Brown, 415 F.3d 1257, 1267 (11th Cir. 2005). In Brown, the Eleventh Circuit was considering a criminal case in which two witnesses for the prosecution testified regarding the similarity of the chemical structure of 1,4-butanediol to the chemical structure of GHB. Id. at 1262. At the conclusion of the prosecution's case, the defense moved to have testimony of the prosecution's two experts excluded and argued that the testimony did not meet the standards of Daubert. Id. at 1263. The trial court denied the motion.
The prosecution's expert witnesses both admitted during trial "that their method and conclusions were not quantitative or testable by the scientific method. Instead, they were based on visual comparisons of the molecular models combined with expert knowledge of chemistry." Id. at 1267. During cross examination, one of the prosecution's expert witnesses characterized his opinion "as being a 'gut level thing' and based on intuition." Id. The prosecution was also unable to produce any documents or studies in which the methodology or opinions of their expert witnesses were subjected to peer review. The expert witnesses did testify, however, "that their method is generally accepted, and the district court credited their testimony that it is." Id.
When confronted with this factual scenario, the Eleventh Circuit was required to answer the question of "whether expert opinion evidence that does not meet three of the four Daubert factors nevertheless can be admitted." Id. The Eleventh Circuit found that, in appropriate circumstances, such opinion evidence is admissible. Id. The Brown court relied upon the United States Supreme Court's dicta that "Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case." Id. (quoting Kumho Tire, 526 U.S. at 141). Indeed, the issue of whether the factors listed in Daubert "are even pertinent to assessing reliability in a given case will 'depend on the nature of the issue, the expert's particular expertise, and the subject of his testimony'." Id. at 1268 (quoting Kumho Tire, 526 U.S. at 150).
When preparing an expert to testify in federal court, utilizing the Daubert criteria is an essential step to ensuring that your expert will be disqualify himself or herself during deposition. Not doing so may expose your expert to an unnecessary disqualification.
The landscape is much less intimidating in state court, where expert testimony is governed by the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Ct. App. 1923). The Frye standard put simply is that "scientific evidence" has to be generally accepted by a meaningful segment of the scientific community. As with Daubert, but stated more clearly by Alabama courts than court discussing Daubert, the Frye standard does not apply to experience based expert opinions. For example, Alabama's appellate courts have repeatedly rejected Frye arguments in the context of expert opinions offered by medical care providers. As recently as 2008, the Alabama Court of Civil Appeals decided Millry Mill Co. v. Manuel, 999 So. 2d 508 (Ala. Civ. App. 2008).
In Millry Mill, a worker in a workers' compensation case proffered testimony from experts on causation, specifically the cause of the employee's neck injury. A Dr. Fleet and Dr. Ray testified on this issue. The defendant contended that the opinions by these physicians were inadmissible, and the trial court disagreed. On appeal, the defendant argued that the opinions of these two physicians were precluded by the Frye expert standard utilized in Alabama state courts. The Court of Civil Appeals summarily rejected this argument and found that physician "testimony regarding the cause of [the employee's] neck injury was not 'scientific' within the meaning of the Frye standard. Dr. Fleet's and Dr. Ray's testimony was not based on scientific tests or procedures; it was instead based on their own experience, knowledge, and expertise as physicians. Accordingly, the Frye standard of admissibility is inapplicable." Id. at *7. The court went on to note that the admissibility of expert testimony on medical causation is governed by Ala. R. Evid. 702, which is discussed below.
The Millry Mill court relied in its holding on Courtaulds Fibers, Inc. v. Long, 779 So. 2d 198 (Ala. 2000). The Courtaulds Court was considering expert veterinarian testimony from Dr. Oehme regarding the cause of death of horses. The Alabama Supreme Court noted that "neither the Frye test nor the Daubert standard applies to Dr. Oehme's testimony. Instead, this issue is controlled by Ala. R. Evid. 702, which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Id. at 202.
The Alabama Supreme Court then went on to reach its holding and pen dicta directly on this point as follows:
Rule 702 does not require an expert to have scientific literature to support his or her opinion. Indeed, a reading of Rule 702 shows a clear rejection of such a narrow interpretation‑"a witness qualified as an expert by knowledge, skill, experience, training, or education" may give testimony thereto "in the form of an opinion." (Emphasis added.) See also McElroy's Alabama Evidence, supra, § 127.02(4) and (5). The narrow interpretation of Rule 702 advocated by Courtaulds would bar physicians from testifying about a differential diagnosis‑a diagnosis based upon ruling out all other causes. See Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248 (1st Cir.1998), and In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3d Cir.1994), cert. denied, 513 U.S. 1190, 115 S. Ct. 1253, 131 L.Ed.2d 134 (1995).
Dr. Oehme's opinions derive from knowledge, skill, and training he has received through his years of experience. This is all that is required under Rule 702.
The Alabama Court of Criminal Appeals has also succinctly found that "[t]he Frye test . . . applies only to the admissibility of novel scientific evidence based on scientific tests or experiments." Minor v. State, 914 So. 2d 372, 400 (Ala. Crim. App. 2004). Therefore, while it is very important to be familiar with the Frye standard when preparing an expert for deposition, you will have more leeway at trial in having the expert deemed qualified.
3. Deposing the Opposing Experts
A great deal of disagreement remains among attorneys regarding whether every opposing
expert witness should be deposed. In our opinion, there are circumstances under which it is not necessary to depose an expert witness and not deposing the expert may actually carry benefits to your case at trial. Some attorneys would argue that the situations under which opposing experts should not be deposed are numerous, while others would swear that failing to depose an opposing expert constitutes borderline malpractice. Our position falls somewhere in the middle, and we broach this subject only to note that the first consideration in deposing an expert witness is whether the expert should be deposed.
Probably the biggest downside for your case if you choose to depose an opposing expert witness is you risk giving the expert a very good idea of what your cross-examination at trial will be like. This can be especially helpful for experts who do not have experience testifying and therefore do not have experience with the rhythm or methods of cross-examination. You may also unwittingly give the expert a better idea as to where his or her opinions may need additional thought or support. This could give an expert the opportunity to answer questions at trial in a slightly different manner than at their deposition while also staying true to the general substance of their deposition testimony.
Some attorneys would insist that experts should be deposed if for no other reason than to get basic information such as prior testimony, pay rates, etc. This information can be obtained directly from the opposing party with interrogatories and/or requests for production. That said, however, our practice remains to depose most defense experts.
Once you have made the decision that you are going to depose the opposing expert, thorough preparation is essential. Although you may elect not to "tip your hand" during the expert's deposition, you very well may miss numerous opportunities to get testimony that may be used to impeach the expert's credibility at trial if you are not prepared for a full-tilt battle of facts and wits with the expert. Among the numerous ways to impeach the credibility of an expert or otherwise to dampen the effect of the testimony include:
1) Establishing that the expert formulated an opinion prematurely or without information that most people would believe was necessary for the opinion. The best example we have seen of this involves the physician expert discussed earlier in this paper who testified at deposition that he had formulated his opinions but had not reviewed critical information;
2) Showing the jury that the expert does not know the relevant facts of the case or has a gap in his or her factual knowledge;
3) Obtaining information about the expert's financial background such as the amount of revenue earned from expert testimony so as to show bias by the expert and establish the expert as a hired gun;
4) Finding out whether the expert knows any of the other experts retained by the other side or has a personal relationship with anyone at the opposing law firm or any witnesses in the case;
5) Finding out whether the expert has been the subject of any prior lawsuits similar to your lawsuit so you can explore whether there is a possible motive for the expert's opinions resulting from the expert's status as a party in a prior lawsuit; and
6) Attempting to have the expert act in an arrogant, sarcastic, or otherwise insulting manner. This is very difficult to convey through deposition testimony, however. We typically make no attempt overtly to do this during deposition, but we are constantly gauging whether it will be possible to have the expert to act in such a manner at trial.
There are any number of valid reasons for deposing the expert of an opposing party. Depositions give an attorney a chance to assess the expert witness's demeanor and overall appearance and to get an idea as to how well the expert will connect with the jury. We have deposed experts before who spend their entire deposition testimony looking at the table, and we know from that behavior that the expert will have great difficulty in looking at the jury. On the other hand, we have had opposing experts perform masterfully during their depositions by weaving their testimony with easy to explain and easy to understand metaphors and by presenting their opinions in a manner that combines a learned demeanor with an occasional infusion of humor. These experts are easy to identify as potentially dangerous to your case. You can also give the expert in a multi-party case the opportunity to criticize other parties who are adversarial to you, and you have an opportunity to explore whether the expert is qualified under the Daubert or Frye standards.
Beyond those and the many other tasks that can be accomplished by deposing an opposing expert, the one reason we almost always depose expert witnesses of other parties is that it gives us the opportunity to box the expert into his or her opinions. We have taken many expert depositions where we ask nothing more than typical background questions, questions regarding when the expert formulated the opinions, and questions regarding what the expert relied upon, and then we have the expert list his or her opinions. We ask numerous bookending questions to ensure that the expert is left with absolutely no wiggle room regarding his or her opinions and the bases for those opinions, and we then end the deposition. We do not take all expert depositions in that way, but knowing that the expert has effectively been boxed makes trial preparation for the expert's testimony much less stressful.
Finally, there is the expert deposition that has as its main purpose putting a case in a posture for settlement. We see most expert witnesses in the context of medical malpractice cases, and we do not pursue any medical malpractice cases with an eye toward settlement given the climate in Alabama. Although some of those cases do settle, the focus throughout the litigation has to be on presenting the case to the jury and ensuring that there are no problems that would justify reversal of a favorable verdict. In other cases, however, we do sometimes take the "guns blazing" approach in deposing defense experts where we begin the deposition on the attack and do not stop the deposition until the attack is over. The purpose of such a deposition is to beat as many admissions as possible out of the expert, to belittle the expert as much as possible not only in the expert's own mind but in the mind of opposing counsel, and to chip away as much as possible at the opposing position. If handled correctly, this kind of all or nothing approach to an expert's deposition can push a case closer to settlement. This approach can also backfire, however, because the opposing counsel will quickly know what you are doing and will gain confidence in the opposing position if you are not successful with this approach and the expert comes out of the deposition largely unscathed.
Fully preparing for the deposition of an opposing expert requires a precise plan as to what you hope to accomplish, how you hope to accomplish it, and the path you intend to take to get what you need. Whether you choose to attack the qualifications of the expert, the foundations of the opinions expressed by the expert, or other factors suggesting bias or attacking credibility, a complete understanding of all relevant facts and a working knowledge of the expert's field are essential.
C. COURT APPOINTED EXPERTS
Courts may appoint their own experts pursuant to Fed. R. Evid. 706. According to Rule 706, the Court may make such an appointment under either its own motion or the motion of any party. The Court may request parties to submit nominations for experts. The Court may appoint any experts either agreed upon by the parties, and it may also appoint expert witnesses of its own selection. This expert is then to advise the parties of the witness's findings. Of course, the expert's deposition may be taken by any party, and the witness may be called to testify either by the Court or by any party. When the expert is appointed by the Court, the expert is subject to cross-examination by every party, including the party who calls the witness at trial.
Court appointed expert witnesses are compensated in whatever amount the Court allows. This compensation is generally paid by the parties in the proportional amount directed by the Court. Even when the Court appoints an expert, any party is free to retain their own expert.
KEITH JACKSON is a partner with Riley & Jackson, P.C. in Birmingham, Alabama.
 Unfortunately, we lost the trial, thus proving once again that willing a battle does not necessarily equate to winning the war.