Examination of Expert Witnesses
This article first appeared in the winter 2008 issue of the Expert Witness.
On October 28 in Edmonton and October 29 in Calgary, Chris Bruce and Derek Aldridge were participants in a Legal Education Society of Alberta panel on examination of expert witnesses. In this note, we offer some recommendations regarding the examination of expert economists. These recommendations are based on our comments during the panel, and the feedback we received.
We divide our advice into pre-testimony and during-testimony periods.
An effective examination is not created days, weeks, or even months before trial, but years. That is because an effective examination begins with a well-constructed expert’s report. In our experience, at least half of the judge’s impression of your expert’s opinion is going to be based on his or her reading of that expert’s report. Our advice, therefore, is that as soon as you receive the first report from your expert, you should try to read it from the perspective of the judge. If you cannot follow the report easily, despite having been immersed in the case, it is not likely that the judge will be able to follow it either.
This is not to say that you should attempt to influence what your expert is going to say. You do, however, have the right to ask your expert to improve how that opinion has been expressed. At this stage, you should particularly be looking for a clear, logical, methodical development of the expert’s argument. Are the facts and assumptions, upon which the opinion has been based, stated clearly? Is there a clear progression from the facts and assumptions to the conclusions? Does the expert employ clear, simple terminology and arguments? Does he or she “tell the reader what he/she is going to say, say it, then tell the reader what has been said?” Too often, we are sent opposing experts’ reports with a request that we please explain what that expert has said. If the lawyer we are working for cannot understand the opposing expert’s report, it is unlikely that the lawyer for whom the report was prepared could understand it either – and it is also highly unlikely that the judge will understand it.
Be cautious when asking your economist to present scenarios that may not be supportable. For example, suppose your plaintiff had a well-established career and earned a steady income averaging $75,000 per year. Your economist will likely include a scenario in which it is assumed that the $75,000 annual income would have continued, but for the accident. However, your plaintiff might have advised you that earnings of $100,000 would have been available, due to a likely promotion, and you may decide to ask your economist to include such a scenario, with the understanding that supporting evidence (say, from the employer) will be forthcoming. If it turns out that no evidence will be offered in court to support the more-optimistic scenario, it will reflect badly on your expert (and your case) if the judge is unimpressed with scenarios that are presented as “illustrative only” or “at the request of counsel.”
We strongly recommend that you have a meeting with your expert some time in the two or three weeks preceding a trial: to clarify what the expert’s opinion is in detail and to prepare the most effective method of presenting that opinion in court. We feel that there are at least four major advantages to this pre-trial meeting. (i) As most experts are involved in hundreds of actions and may have written the report in this case months, if not years, ago, a pre-trial meeting can ensure that the expert is fully familiar with his/her own report. (ii) As it is common that new information becomes available in the last month or two before the trial, it is important that the expert is made aware of this information. (iii) You and the expert should discuss the most effective techniques for presenting his/her evidence. Are you, for example, going to follow the expert’s report page-by-page? At this stage, it is often useful to try some practice questions on the expert as experts can sometimes find the wording of questions to be confusing. If there are certain points that you especially want your expert to make during his/her testimony, make sure that your expert knows this, and knows what type of question you will ask in order to obtain the desired response. (iv) A review of the file with your expert may provide you with a clearer assessment of the strengths and weaknesses of both your expert’s report and that of the opposing experts, thereby creating a firmer basis on which to negotiate a settlement.
It is often also important to meet with your expert during the trial, a day or two before his/her testimony. As the lay witnesses appear before the experts, it is important that your expert be informed about any new information that has been presented during the lay testimony. Also, since the economist typically follows most (if not all) of the other experts, your economist can be advised of what evidence was ultimately offered by some of the other experts who prepared reports that were used as a foundation for the economist’s evidence. For example, if the vocational expert’s evidence has changed slightly from that offered in his 218 report (based on new information offered by lay witnesses during trial perhaps), it is important for your economist to know about this. Finally, the expert can be informed concerning the general approach that has been taken by both the opposing counsel and by the judge.
In the weeks or days before testimony, it is important to discuss with your expert the counter-arguments that you and he/she expect will be raised by the other side. While rebuttal reports may been prepared already, it is useful to try to identify what will be the most contentious economic issues, and what your expert’s response will be. Discuss any weaknesses in your expert’s report, and how they might be dealt with in court.
Unless you have a particularly poorly-qualified expert, you should always begin the expert’s testimony by reviewing his/her qualifications, to impress the judge with the expertise of your witness. If you have a particularly well-qualified expert, opposing counsel may attempt to preclude you from introducing these qualifications by announcing that he/she will accept the expert’s qualifications without a review of the c.v. It is not advisable, of course, to succumb to this tactic.
Before beginning a review of the expert’s qualifications, it is advisable to inform the judge what that individual’s area of expertise is, so the judge can contrast the expert’s qualifications with the expertise that you are claiming.
Do not simply ask the expert to describe his/her c.v. Some experts will be too modest to provide a full description – and some will be too boastful. Rather, ask them a series of questions about specific aspects of their expertise – for example, about their most important educational attainments, their professional experience, their most important publications, and their experience testifying.
Enter the expert’s report and base your examination on the report. As the judge will not have expertise in the expert’s area, it will be useful for the judge to have the report before him/her as an aid to understanding the testimony. Also, as the judge will need to read the report later, when preparing a decision, it will be useful to be able to relate the recorded testimony to the report.
Follow the report page-by-page, if not paragraph-by-paragraph or line-by-line in your questioning of the expert. Our experience is that judges find it useful to follow the report during the testimony. If you start jumping around from page to page, the judge will become frustrated.
Ask questions that require only short answers. The court’s attention is held better that way than by allowing the expert to ramble on, perhaps becoming embroiled in the language of his/her discipline.
If you are representing the plaintiff and you think opposing counsel is going to introduce his/her own expert to counter yours, it may be advisable to ask your expert to comment on the opposing expert’s arguments. Your expert may be in a better position to expose the weaknesses of those arguments than you will be in cross-examination.
Similarly, you should also attempt to anticipate the tack that opposing counsel will use in cross-examination of your witness and ask your expert to comment on the anticipated arguments. Your expert will be much more comfortable “arguing” with you than with your opponent, both because cross-examiners will often severely curtail any attempt by experts to raise counter-arguments and because most experts will be reluctant to appear argumentative (with cross-examiners) as it makes them appear biased.
Sometimes during cross-examination, your expert may concede a weakness or error in his/her report. If the other lawyer does not allow your expert ample opportunity to discuss the significance of this weakness/error, then it may be helpful for you to raise the issue during redirect. This will provide your expert with additional time to think about the issue, and to provide a more in-depth response, if one is required.
In summary, a successful examination of your expert economist begins with a well-written report, containing scenarios and assumptions that match the evidence that will ultimately be offered in court. Regardless of your expert’s prior trial experience, it is always useful to meet with him or her before trial to discuss the economic evidence that will be offered, prepare for the other side’s arguments, and advise him/her of relevant testimony by other witnesses. With a suitable foundation and preparation before trial, your expert will have the best opportunity to perform well during trial.