So You Think You're An Expert?
Most complicated civil lawsuits contain an array of issues that are deemed beyond the understanding or experience of most laypersons. In these situations, those laypersons, judges and juries require explanations from “experts” in a given field. Under California Evidence Code § 720(a), a person is deemed qualified to testify as an expert if he or she “has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.”
For instance, when experts are involved in civil cases, in lawsuits where damages to businesses are in question, Certified Public Accountants or economists are often required to examine past performance and trends of activities relevant to the lawsuit and to project future performance and trends. In construction defect or non-performance cases, experts on construction repairs, often contractors themselves or civil engineers, are required to explain what did occur, as well as what should have occurred. In the increasingly complex world of computer technology, forensic computer experts are often required to untangle and explain what is located on or deleted from personal computers, or the parties’ other questionable activities, and what are the consequences of those actions.
The test of whether the expert witness is truly an expert is, in the words of the California Supreme Court, “whether the witness has sufficient knowledge, skill or experience in the field so that his or her testimony would be likely to assist the jury in its search for the truth.” In making this determination, the courts look to the proffered expert’s education, training, professional career in the particular field, specialized expertise and training in a relevant sub-field, speaking and teaching experience on the subjects and previous experience serving as an expert. Serving as a consultant is up to the attorney making the selection; qualifying as an expert under the Evidence Code is up to the judge.
One usually starts as a consultant before being designated as an expert. When performing as a consultant/expert, one’s tasks can be as simple as analyzing data and opining on the results. Conversely, tasks can be as complicated and time-consuming as performing multiple tests at various sites or in laboratories, or inspecting persons or machines or to be in a position to reach a conclusion. That conclusion must be one that the expert feels comfortable explaining to a judge or jury in the context of what sometimes can be withering cross-examination by the opposing counsel.
Providing forensic expert testimony is often an adjunct to one’s regular duties in a given field. Experts are compensated initially by the parties retaining them to assist as an undisclosed “consultant” in guiding complicated or technical issues in a case. This often starts at the beginning of a case and involves helping guide the discovery process, e.g., written interrogatories, document requests, depositions of parties or percipient witnesses. In addition, the duties of a consultant often involve preparation of a written report. The time period one serves as a consultant can last a year or longer. If it appears that a trial may be necessary in order to resolve the conflict, the consultant is then “disclosed” fifty days before trial as an expert who is subject to deposition by the opposing parties’ lawyers about his/her opinion and report if one is prepared. In that setting, the expert’s fees are paid by the party taking the deposition. It is common for each side’s experts to sit in during depositions of the other side’s experts.
The standard four questions posed to any expert at his or her deposition are: (1) what were you hired to do, (2) what did you do, (3) what is your opinion and (4) can you explain your opinion? This is not always as simple as it sounds. It is not uncommon during the early stages of an engagement that the opinion reached is not what the lawyers or parties are hoping to hear. In that situation, the undisclosed consultant may be replaced by another undisclosed consultant to provide fresh and independent findings and, it is hoped, reach a different conclusion. That is why the “undisclosed consultant” does not become a “disclosed expert” until lawyers and clients are satisfied with the results.
Finally, if a case does end up in a courtroom, the party hiring the expert again becomes responsible for the fees as the expert explains to the jury, or to the judge in a court trial, how the technical issues frame each party’s entitlements, or lack thereof. It is also common for each side’s experts to sit in during the trial testimony of the other expert. They then battle it out in front of the trier of fact to establish which party is right and which is not.
The most credible experts are those whose forensic testimony is divided equally between work for plaintiffs and work for defendants. Similarly, performing expert work for a number of different law firms adds to credibility. Otherwise, an expert, whose opinion is correct in the abstract can be denigrated as a “homer,” i.e., an expert who regularly testifies for a particular side or firm in all cases or, even worse, be deemed a “pay and say” type, i.e., “pay me a fee and I’ll say what you want.” If you are hired as an expert and reach the point of being deposed before trial, or examined in court during trial, remember to be on the lookout for the one trick question asked of all experts. The issue is never how much are you being paid “for your testimony;” the answer should always be, “I am being paid for my time, not testimony”
Do you have expertise in a particular field that is beyond the basic understanding of most lay persons? Perhaps you have a second or expanded career as a forensic expert to pursue!