The Expert Expert | The Path to Prosperity and Prominence as an Expert Witness
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The Expert Expert | The Path to Prosperity and Prominence as an Expert Witness | Douglas L. Field | Taschenbuch | Kartoniert / Broschiert | Englisch | 2013 | iUniverse | EAN 9781475971712 | Verantwortliche Person für die EU: Libri GmbH, Europaallee 1, 36244 Bad Hersfeld, gpsr[at]libri[dot]de | Anbieter: preigu Print on Demand.
Codice articolo 106058973
- Titolo
- The Expert Expert | The Path to Prosperity and Prominence as an Expert Witness
- Autore
- Douglas L. Field
- Editore
- iUniverse
- Anno di pubblicazione
- 2013
- Condizione
- Neu
- Rilegatura
- Taschenbuch
- Lingua
- inglese
- ISBN 10
- 1475971710
- ISBN 13
- 9781475971712
- Peso dell'articolo
- 377 grammi
- Dimensioni
- 229 x 152 x 14 mm
- Cataloghi dei venditori
- Bücher
Experts occupy a unique position in the litigation process. The law and the courts give them automatic authority and credibility at the outset. But the greatest challenge for experts as they navigate the court process is to preserve that high level of credibility going forward. In The Expert Expert, author Douglas L. Field presents detailed information to help an expert professional become an effective witnessand keep intact ones reputation as a capable and credible expert witness.
Geared toward physicians, architects, accountants, engineers, and many other professionals, The Expert Expert contains a comprehensive discussion of all aspects of professional expert witness practicefrom the history of experts in court to current practices. It discusses how to
understand the anatomy of a tort case;
write a good expert report;
contend with contention;
deal with the opposing attorneys questions;
give a good deposition;
succeed at trails;
avoid common pitfalls;
ensure getting selected;
deal effectively with social media; and
handle financial and money issues.
Including helpful and meaningful illustrations, The Expert Expert offers everything that either the veteran or aspiring expert needs to attain and maintain success as a professional expert witness.
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THE EXPERT EXPERT
THE PATH TO PROSPERITY AND PROMINENCE AS AN EXPERT WITNESS
By Douglas L. FieldiUniverse, Inc.
All rights reserved.
Contents
| Preface.................................................................... | xi |
| Acknowledgments............................................................ | xv |
| Introduction: First Things Firstx.......................................... | vii |
| Chapter One Turning Experts into Expert Witnesses Preliminary Principles... | 1 |
| Chapter Two The Care and Feeding of Legal People: How to Work Together Effectively................................................................ | 7 |
| Chapter Three What Is an Expert Witness?................................... | 19 |
| Chapter Four The Common Law: The Heartbeat of Anglo-American Jurisprudence.............................................................. | 25 |
| Chapter Five The Anatomy of a Modern Tort Case............................. | 30 |
| Chapter Six Discovering Discovery.......................................... | 43 |
| Chapter Seven The Claims Continuum: The Process of Case Evaluation......... | 58 |
| Chapter Eight Party Down! Managing Risk and Reducing Exposure: A Primer on Insurance.................................................................. | 70 |
| Chapter Nine Reporting for Duty: The Essentials of Writing a Good Expert Report..................................................................... | 79 |
| Chapter Ten Contending with Contention..................................... | 93 |
| Chapter Eleven A Trip to the Islands: What Will the Opposing Attorney Try to Do to Me?............................................................... | 98 |
| Chapter Twelve On the Playing Field: How to Give a Good Deposition—General Considerations............................................................. | 106 |
| Chapter Thirteen On the Playing Field: How to Give a Good Deposition—Principles of Giving Good Deposition Testimony.................. | 114 |
| Chapter Fourteen On the Playing Field: How to Give a Good Deposition— Predictable Attack Lines and Cross-Examination Techniques.................. | 120 |
| Chapter Fifteen The Big Show: Succeeding at Trial—A Successful Direct Examination................................................................ | 132 |
| Chapter Sixteen The Big Show: Succeeding at Trial—Winning on Cross......... | 146 |
| Chapter Seventeen Avoiding Common Pitfalls................................. | 159 |
| Chapter Eighteen Impedimenta: Addressing Some Roadblocks to Undertaking Expert Witness Practice.................................................... | 165 |
| Chapter Nineteen How to Ensure Getting Picked.............................. | 168 |
| Chapter Twenty The Question of Finance: How to Ensure Getting Paid......... | 172 |
| Chapter Twenty-One On Record Keeping: A Case of Competing and Conflicting Considerations............................................................. | 179 |
| Chapter Twenty-Two The Internet, Social Media, and Expert Witness Practice................................................................... | 183 |
| Chapter Twenty-Three The Case for Expert Certification..................... | 185 |
| Chapter Twenty-four And Last Things Last: Concluding Thoughts.............. | 189 |
| About the Author........................................................... | 191 |
| Index...................................................................... | 195 |
Excerpt
CHAPTER 1
TURNING EXPERTS INTO EXPERT WITNESSESPRELIMINARY PRINCIPLES
Any thoughtful reflection on the challenges of managing a largecivil trial practice soon settles on the question of expert witnesses.Experience indicates that in a typically busy practice, expert witnessproblems arise at least weekly. Expert issues, what is more, are almostnever routine or simple administrative matters that can be easily dealtwith. They are almost always of crucial importance to the individualcase in which they arise. By extension, then, they have ramificationsthat affect the entire law office. Whether as catastrophic as an expert'scomplete disintegration/collapse on the witness stand at trial or as simpleas fractiousness in scheduling and calendaring, these failures cannot beignored. They require the commitment of significant resources of timeand energy for resolution. And frequently their impact is significantlynegative on case outcome.
Expert witness problems can be grouped into three general areas.
First, difficulties often are generated by a lack of contextualunderstanding on the part of the expert of the peculiarities of thelegal system and the courts. Much confusion results from the realitythat assumptions and practices taken for granted by lawyers andjudges are quite distinct from those that operate in other professionaldisciplines.
Next, there are breakdowns in good communication. These breakdownsresult from failure to ensure explicit understanding between the referringattorney and the expert as to the purpose and scope of the assignment,the preparation of formal reports, and the provision of quality deposition/trial testimony. Regardless of the source, communications confusion isrepeatedly experienced in expert witness practice.
Finally, lack of collaboration in administrative matters of arrangingexaminations, inspections, meetings, depositions, and court appearancesare a continual frustration.
It is occasionally (and mistakenly) said, "Leaders are born, not made."By extension it is also commonly, and again incorrectly, thought that agood expert witness is either naturally born to the work or not, and thatskill as a witness cannot be taught. It is the thesis of this chapter thatwith reasonable and effective teaching, anyone with the native ability andfaculties to attain the status of expert can, in addition, learn to be a goodexpert witness.
Specific and intentional education to achieve the foregoing is needful.It should comprise a carefully crafted curriculum of study with interactiveelements that document progress and recognize and certify successfulcompletion. Attention to the three concepts of context, communication, andcooperation forms a workable framework for appreciating how the witnesspotential and capability of experts can be markedly improved and is a pointof departure for developing teaching strategies and curricula.
I. Context
The context of expert witness activity is the modern legal system and thecourts. Therefore, a rudimentary understanding on the part of the expert ofhow and why the law and the courts function as they do is essential. Mostexperts are learned in some scientific field of inquiry. Medicine, engineeringof all kinds, architecture, biomechanics, accident reconstruction, andaccounting (to list only a few obvious examples) are all firmly rootedin scientific inquiry and the scientific method. All these disciplines relyfundamentally on observability, repeatability, and verifiability as the basesfor the inquiry that undergirds their conclusions.
Law is unscientific in the sense that at its core, a legal case involves theprocess of reconstructing a single, unique past event, a past event that bynature is no longer observable or repeatable. Law is much less rooted inscientific method than it is in historical method and in promoting a fair andaccurate reconstruction of the event upon which legal conclusions can bedrawn and decisions made. Experts should understand that the epistemologyof the law (that is, the way the law learns what it learns and knows what itknows) is altogether different from that of their own disciplines. In practicalfact, this means that the expert's interaction will not usually be with otherpersons of scientific training and assumptions, but persons trained in history,rhetoric, English, and political science. One might profitably think of themas people who prefer crossword puzzles to Sudoku. Much confusion isgenerated between attorneys and their experts as a result of this underlyingand dramatic difference in basic assumptions.
Inasmuch as expert witnesses undertake to expand their practicesinto the legal arena, they should anticipate and be prepared for the factthat referring attorneys expect them to be willing to commit to acquiringa working knowledge of the legal system and the hows and whys of itsoperation. Any effort directed toward preparing experts for effective witnesswork must consider as of first importance the context of the legal system,its historical development, and its current manner of operation.
II. Communication
Having cleared away the confusions created by poor contextualunderstanding, the improvement of all aspects of communication betweenexperts and their referring attorneys is the next order of business. Capableexpert witnesses need to be able to effectively impart information as well asalso to demand it. Good expert communication starts with an expert whois able to demand from the referring attorney all of the information anddetails necessary both to understand the purpose and scope of referral and tocomplete the assignment. Any expert should feel free, not only at the time ofreferral but also throughout the pendency of the assignment, to contact thereferring attorney and secure all necessary information and assistance.
Having thoroughly and completely understood the assignment andcompleted it with the utmost of professional ability and zeal, experts nextface the challenge of communicating their opinions and conclusions inthree different realms: (1) the report, (2) the deposition, and (3) testimonyat trial. Obviously not all referrals involve every type of communication.Most assignments (in particular medical ones) will require a report. Someentail giving a deposition. Very few, but a significant number nevertheless,will require an appearance at trial.
Each of these communication events is distinct and requires thedevelopment of different skills. However, the order in which they occuris important, and each event builds upon the other. The preparation ofa high-quality report forms the basis for effective deposition testimony.Then the giving of a good deposition, if it does not avoid the need for trialaltogether, is essential in being prepared for a good jury presentation.
The specifics of the subject of communication are diverse andcomplicated, but it cannot be overemphasized that the development ofsuperior expert witness communication skills is the axis upon whichthe entire effort turns. Their development alone will promote the othertwo elements of context and cooperation. Teaching good, full-spectrumcommunication by way of report writing, deposition testimony, and trialpresentation is the essence of improving expert witness effectiveness.
III. Cooperation
After securing good contextual understanding and excellentcommunication, brief attention to the matter of mutual cooperation iswarranted. Legal people often experience many challenges when attemptingto secure examination and deposition dates from experts. Horrifyinglyworse, from the perspective of the referring attorney, is being told thatthat the medical expert, as only one example, is unable to attend trial asscheduled due to an emergency surgery. It might be thought, particularlyin view of the significant money that is invested in experts, that a highlevel of cooperation in scheduling and appearing for depositions and trialwould go without saying. Recent experience demonstrates that it oftendoes not.
No expert should undertake legal work without first fully understandingthe practical requirements that it will entail. Trials are set months, even asmuch as a year, in advance of their start dates. In most states and in thefederal courts, there is a detailed pretrial expert disclosure procedure thathas numerous date-sensitive and inviolable time deadlines. Experts will berequired to respond fully to the quotidian exigencies of legal work in termsof being willing to appear on comparatively short notice and to be patientwith the numerous continuances and postponements, which always seemto characterize the legal process and which usually result from actions andconsiderations entirely beyond the control of the referring attorney.
Mutual cooperation is best secured through education. Whenthe parties to expert witness practice clearly understand each other'sdemands, pressures, and professional obligations, the road to success ismade easier. Although basic, some might say obvious, careful attention tofull professional cooperation will be required in any process designed todevelop better expert witnesses.
It is hoped this analysis demonstrates the reality that while expertwitness practice is fraught with pitfalls for all concerned, they are notinsurmountable. A comprehensive and carefully thought out trainingeffort to teach experts to become good witnesses can readily be developedand will achieve commendable results. These results will measurably raisethe quality of expert witness practice and testimony and will have thenotable collateral benefit of lifting the quality of practice of all professionalsinvolved and promote the effective administration of justice generally.
Experts are routinely learned and well qualified in their fields of study,certification, and experience. This does not necessarily mean, however,that they are automatically schooled and competent in performing asefficient participants in the legal process and as effective witnesses. Whilethis next level of preparation is intricate and involved, good educationalprocesses, curricula, and practical experience will adequately address anydeficiencies.
This process of securing significant overall improvement of expertwitness practice starts with a good working knowledge of the variousconstituencies who practice law and operate the courts. After that, thereis needed a healthy appreciation of the challenges that confront experts ona daily basis. Finally, a brief discussion of experts and their offices, on theone hand, and legal people, on the other, will help each to understand howboth can most effectively work together.
CHAPTER 2
THE CARE AND FEEDING OF LEGAL PEOPLE:HOW TO WORK TOGETHER EFFECTIVELY
The courts, litigation attorneys, and their offices deal with experts, theiroffices and administrative personnel, and expert issues every day. From theperspective of legal people, these encounters are routinely frustrating,difficult, and many times unrewarding. This is by no means to fix blameon nonlegal professionals, but it does point out the need for much greatermutual understanding of common and competing professional wants andneeds. What follows represents the viewpoint from the legal side as to howexpert professionals can better understand and address the exigencies oflegal practice at those frequent times when the respective practices coincide(not to say collide!).
It should be recognized as a first order of business that a certainunavoidable symbiosis exists among the professions, such that awarenessand embracing of the need to work together will promote more effectivecollaboration for the greater good of all. Further, legal practitioners fall intoseveral categories, whose challenges and work routines are quite distinctfrom one another. They require separate understanding by those on theexpert practitioner side. Finally, a number of practical suggestions foreasing our joint path can be readily identified.
(It is candidly acknowledged that these observations are producedfrom the vantage point of a legal professional looking at other professions.It is to be hoped that a similar commentary might be forthcoming fromthe nonlegal perspective looking at the legal side. It would be gratefullyreceived and carefully considered.)
The Reluctant Symbiosis
Howsoever unenthusiastically it may often be embraced, the symbioticrelationship between the nonlegal, especially medical, professions and thelegal profession is inevitable and indissoluble. Medical issues, as a notableexample, are central to (in some cases absolutely essential to) a significantnumber of prevalent areas of the law. These include personal injury law,family law, criminal law, and workers' compensation. Public entity law,corporate law, contract law, or real estate law are not thusly grounded. Thelegal areas listed above where medicine, again by way of example, and lawcross intimately affect the lives, freedoms, and livelihoods of the litigantsmuch more than in other areas.
The professional code of ethics for the medical profession obligesphysicians as citizens to assist in the administration of justice.
The significance to society of our professions closely interacting isdifficult to overstate.
The relationship between medicine and the law stands as an excellentstarting point for illustration of the close relationship that at all times andin all circumstances exists between the various professions and the law.The following discussion emphasizes medicine but may be applied to otherprofessions.
The proportion of legal cases in which the medical or psychologicalhealth of litigants, parties, or witnesses has been placed in issue isextraordinarily high, and the result is that all medical personnel who havetreated these persons are likely to become involved in their legal cases.Medical issues represent essential inquiries in most injury cases, at boththe claims and litigation stages. Lawyers, judges, and juries are dependenton the medical profession to explain, objectify, and predict the future of alitigant's medical situation.
Our societal vehicles for the compensation of injuries and thedetermination of criminal guilt or innocence cannot operate withoutmedical participation.
Conversely, medicine depends on the legal profession for the socialand financial stability needed for it to flourish. In no small measure, thelaw is a benefits delivery system that provides the equitable, orderly, andenforceable delivery of monetary assets to those who require medical care.When it works as intended, recipients of benefits will in turn compensatethe people who are caring for them (and who often will need to continue tocare for them on into the future). Courts, judges, and attorneys operate thesystem that secures the stream of commerce that enables effective medicalpractice to occur in peace, stability, security, and prosperity.
It is not possible to practice medicine in a vacuum where the law doesnot intrude.
There is, thus, an unavoidable interdependence between the medicaland legal professions that their practitioners are left without alternative butto warmly accept and willingly embrace. Practitioners of other professionswill appreciate that similar symbiosis exists between their professions andthe legal profession and will likewise recognize the importance of mutualcooperation and understanding.
Full appreciation of the legal side of this equation starts with descriptionof the various practitioners of our profession and the ways in which theiractivities fit into the whole of the practice of law.
Dramatis Personae:The Legal Cast of Characters
The principal groups of legal people that expert professionals can expectto encounter are judges, juries, attorneys, paralegals, and legal secretaries.Each group has its distinct professional and administrative challenges, andeffective collaboration will recognize these and respond to them.
(Continues...)
(Continues...)
Excerpted from THE EXPERT EXPERT by Douglas L. Field. Copyright © 2013 by Douglas L. Field. Excerpted by permission of iUniverse, Inc..
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
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on which you or a third party nominated by you, which is not the carrier, had taken possession of the products, provided you had ordered one or more products within the scope of a standard order and this/these product/products is/are delivered uniformly;
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on which you or a third party nominated by you, which is not the carrier, had taken possession of the last part delivery or the last unit, provided you had ordered a product, which is delivered in several part deliveries or units;
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for delivery of products, which are not prefabricated and for whose manufacturing an individual selection or stipulation by the consumer is important or which are clearly tailored to the personal requirements of the consumer;
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for delivery of products, which can spoil quickly or whose use-by date would be exceeded quickly;
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for delivery of alcoholic drinks, whose price was agreed at the time of concluding the contract, which however can be delivered 30 days after the conclusion of the contract at the earliest and whose current value depends on the fluctuations in the market, on which the entrepreneur has no influence;
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for delivery of newspapers, periodicals or magazines with the exception of subscription contracts. The revocation right expires prematurely in case of contracts
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for delivery of sealed products, which are not suitable for return for reasons of health protection or hygiene if their seal has been removed after the delivery;
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for delivery of products if they have been mixed inseparably with other goods after the delivery, owing to their condition;
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for delivery of sound or video recording or computer software in a sealed package if the seal has been removed after the delivery.
Specimen - revocation form
(If you wish to revoke the contract, please fill up this form and send it back to us.)
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To preigu GmbH & Co. KG, Lengericher Landstr. 19, 49078 Osnabrück, Email address: mail@preigu.de :
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I/we () herewith revoke the contract concluded by me/ us () regarding the purchase of the following products ()/
the provision of the following service () -
Ordered on ()/ received on ()
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Name of the consumer(s)
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Address of the consumer(s)
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Signature of the consumer(s) (only in case of a notification on paper)
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Date
(*) Cross out the incorrect option.
Privacy e sicurezza
Data protection declaration
Unless stated otherwise below, the provision of your personal data is neither legally nor contractually obligatory, nor required for conclusion of a contract. You are not obliged to provide your data. Not providing it will have no consequences. This only applies as long as the processing procedures below do not state otherwise.
"Personal data" is any information relating to an identified or identifiable natural person.
Responsible person
Contact us at any time. The person responsible for data processing is: Ansas Meyer, Lengericher Landstr. 19, 49078 Osnabrück Deutschland, +49 (0) 541 / 580 72 84, mail@preigu.de
Collection and processing when using the cancellation button
If you have entered into a contract via this platform for which a statutory right of cancellation applies, the platform provides you with a cancellation function (cancellation button) through which you can submit your notice of cancellation immediately.
When using the cancellation function, your personal data (name, email address, details identifying the contract or part of the contract you wish to withdraw from, and the time (date and time) of sending the notice of withdrawal) will only be collected to the extent that you have provided it.
The purpose of data processing is to provide you with the statutory option to withdraw from your contract and to ensure the proper processing of your withdrawal.
The platform operator collects your data on the basis of Article 6(1)(f) of the GDPR, namely the legitimate interest in ensuring the general accessibility of the statutory withdrawal function on the platform. You will receive a confirmation email from the platform operator acknowledging receipt of your notice of withdrawal.
The data is then transmitted to us by the platform operator.
If the contact relates to a contract already concluded between you and us, this data processing is carried out on the basis of Article 6(1)(b) of the GDPR. Otherwise, data processing is carried out on the basis of Article 6(1)(c) of the GDPR, to fulfil a legal obligation to provide an electronic withdrawal function.
We use your email address solely to process your notice of withdrawal. Your data will subsequently be deleted in accordance with statutory retention periods, provided you have not consented to further processing and use.
Collection, processing, and transfer of personal data in orders
When you submit an order we only collect and use your personal data insofar as this is necessary for the fulfilment and handling of your order as well as processing of your queries. The provision of data is necessary for conclusion of a contract. Failure to provide it will prevent the conclusion of any contract. The processing will occur on the basis of Article 6(1) b) GDPR and is required for the fulfilment of a contract with you.
Your data will be shared, for example, with shipping companies, dropshipping or fulfillment providers, payment service providers, service providers for order processing, and IT service providers. We will comply strictly with legal requirements in every case. The scope of data transmission is restricted to a minimum.
Duration of storage
After contractual processing has been completed, the data is initially stored for the duration of the warranty period, then in accordance with the retention periods prescribed by law, especially tax and commercial law, and then deleted after the period has elapsed, unless you have agreed to further processing and use.
Rights of the affected person
If the legal requirements are fulfilled, you have the following rights according to art. 15 to 20 GDPR: Right to information, correction, deletion, restriction of processing, data portability. You also have a right of objection against processing based on art. 6 (1) GDPR, and to processing for the purposes of direct marketing, according to art. 21 (1) GDPR.
Right to complain to the regulatory authority
You have the right to complain to the regulatory authority according to art. 77 GDPR if you believe that your data is not being processed legally.
You can lodge a complaint with, among others, the supervisory authority responsible for us, which you may reach at the following contact details:
Landesbeauftragte für den Datenschutz Niedersachsen Prinzenstraße 5 30159 Hannover Tel.: +49 511 1204500 Fax: +49 511 1204599 E-Mail: poststelle@lfd.niedersachsen.de
Right to object
If the data processing outlined here is based on our legitimate interests in accordance with Article 6(1)f) GDPR, you have the right for reasons arising from your particular situation to object at any time to the processing of your data with future effect.
If the objection is successful, we will no longer process the personal data, unless we can demonstrate compelling legitimate grounds for the processing that outweigh your interests or rights and freedoms, or the processing is intended for the assertion, exercise or defence of legal claims.