Effective expert witnessing

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

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© 1999 by CRC Press LLC

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© 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 [email protected].

© 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

Venue

Judge

Jury Selection

Plaintiff and Defendant

Counsel and Cast

Witness Line Up

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© 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

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Opening Statements

Witnesses

Closing Statements

Epilogue

The Experts

Personalities of the Lawyers

The Clients

13 A Gas of a Case

Witzig v. The County of Sugarland

Deposition

Escape

14 Swamp Gas and the Greenhouse Effect

Bahamas, Inc. v. Osman Geotechnical

Deposition

15 It’s Criminal: More than Money at Stake

Environmental Protection Agency v. Chem Tank

16 Turning the Tables: The Expert as a Fact Witness

Hettsmansperger v. Macedonian Manufacturing

The Facts

Emotions

Deposition

17 The Big One

Thomas et al. v. Noble Oil

Deposition Phase

Settlement Negotiations

18 Junk Science

Watt Electric v. MG Associates

Discovery

Depositions

The Trial

Section III. Observations and Conclusions

19 To the Lawyer

Hire an Expert Consultant Shortly After a Client Has

Contracted for Your Services

Table of Contents

© 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 the

Paradigms and Metaphors for Translating

the Technical Information to a Jury

A Good Expert Will Brainstorm Novel Approaches

to Technical Issues

Trial Exhibits Are Extremely Important in Technical

Cases, Making Seemingly Esoteric Statements

Come To Life

A Good Expert Can Help Prepare the Questions for

Direct and Cross Examination of Witnesses

In Summary

20 The Verdict

Practice

Study

Detective Work

Conclusion

21 The Future of Expert Witnessing

High Tech Experts

Junk Science

From Gladiator to Negotiator

Conclusion

Appendices

Appendix A: Directory of Organizations

Appendix B: National Society of Professional Engineers

Recommended Practices

Appendix C: References

Appendix D: Letter to Attorney and Sample Résumé

© 1999 by CRC Press LLC

Section I

How To Be an Expert

© 1999 by CRC Press LLC

1 Baptism of the

Expert Witness

Bailiff: Do you solemnly swear to tell the truth and nothing but the truth,

so help you God?

“What am I doing here on the witness stand? I’m a very successful

clothier and here I am testifying as an expert against a tailor. Imagine

me, an expert witness.”

Facts of the Case

An individual rushed into a tailor’s shop and requested that the tailor make

a suit based on measurements the customer had earlier taken. After a discus￾sion in which the tailor initially refused the job, he was persuaded to go ahead

with the suit. Later, when the suit did not fit, the customer sued the tailor to

get his money back. The tailor is being sued for negligence on the basis that

it is the duty of a tailor to accept only his own measurements or those of

another qualified tailor. He breached that duty by accepting the measure￾ments of the client. The tailor is claiming that the customer waived the tailor’s

duty by assuming the risk after the tailor’s initial refusal.

Q. Sir, what is your background and experience?

A. After high school I went to the State University and received a degree

in Textiles. I worked for Zell Brothers Clothes for 15 years doing

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everything from tailoring to buying and retailing. Five years ago I

started my own store and now have a chain of ten.

Q. Have you written any articles?

A. Yes, I’ve written twelve articles and a book entitled, How To Tailor￾Make Your Own Business.

Q. How would you explain what happened in this case?

A. When the customer demanded a custom-made suit using measure￾ments provided by the customer, the tailor should have refused. No

tailor should ever accept measurements unless he has confidence in

them. Even then the tailor must be careful. His reputation is at stake.

I never accept measurements unless they were taken by another

tailor.

Q. Do you have an opinion as to the duty of the tailor in this instance?

A. Yes.

Q. What is your opinion?

A. The tailor breached his duty and was negligent in accepting the

customer’s measurements.

“Uh-oh. Here is another attorney. This must be cross examination. I wish my

lawyer had prepared me for this.”

Q. Sir, the tailor initially refused to take the order, didn’t he?

A. Yes.

Q. And he refused because he wanted to take the measurements, didn’t

he?

A. Yes.

Q. So the customer was put on notice that the measurements were

crucial, correct?