SESSION 30: EXPLAINING TO YOUR ATTORNEY WHAT YOU DO AND WHY YOU DO IT: How Traffic Records Affect Tort Litigation

Moderator: James R. Dawson, Louisiana AAG Sonia Mallett, Louisiana AAG Educating Your Company’s/Agency’s Attorney James R. Dawson, Louisiana AAG How Have Traffic Records or other collected data been or attempted to be utilized by litigators in tort suits against governmental agencies? Is our Date Protected? A Discussion of 23 U.S.C. 409 Issues Demetra Collia, BTS How Federal Agencies Protect Confidential Data

Educating Your Company’s/Agency’s Attorney Sonia Mallett, Louisiana AAG

COMMUNICATION BETWEEN YOU, AS THE WITNESS, AND THE ATTORNEY Witness’s Point of View: I don’t want to be a witness. Why do you need me as a witness? I hate cross examination. Do we speak the same language? Attorney’s Point of View: The better educated the attorney is in the area you will testify, the better equipped he/she is at handling you as a witness and the evidence to be introduced

Can we speak the same language? Big Picture v. Details Why would we want to speak the same language?

Questions to Ask Attorney 1.What is my task? 2.Who is my audience? 3.Will I need to prepare a written report and for whom? 4.When is the report due? 5.Are you available to assist me in preparing for my testimony?

BASICS OF COMMUNICATING

EYES UP BREATH HIGH IN THE CHEST VERBAL CUES 1. VISUAL - SENSORY MODALITY OF SEEING REPRESENTATIONAL SYSTEMS DIM FUZZY DISTANT SEE

2. AUDITORY - HEARING/SPEAKING SENSORY MODALITY INCLUDING WORDS AND SOUNDS EYES CENTER BREATH ACROSS THE CENTER OF THE CHEST VERBAL CUES YELL LISTEN RING

3. KINESTHETIC - SENSORY MODALITY OF TOUCH, MUSCLE TENSION/SENSATION AND EMOTIONS/FEELINGS EYES DOWN BREATH LOW, DOWN INTO ABDOMEN VERBAL CUES PUSH FALL FEEL

4. GUSTATORY TASTE 5. OLFACTORY SMELL

ONE WAY VS. TWO WAY COMMUNICATION

ACTIVE LISTENING A SKILL THAT ACKNOWLEDGES THE OTHER PERSON’S MESSAGE, WHICH MAY OR MAY NOT MEAN AGREEMENT

USING “I” MESSAGES “I” MESSAGES TELL OTHERS ABOUT THE PROBLEM YOU ARE HAVING WITH THEIR BEHAVIOR WITHOUT ATTACKING OR PLACING BLAME

NON-VERBAL COMMUNICATION FACIAL EXPRESSION BREATHING WALKING FAST OR SLOW BODY GESTURE ARMS AND HANDS CHOOSING TO SIT OR STAND

PEOPLE TEND TO VENTILATE THEIR FEELINGS THROUGH NONVERBAL COMMUNICATION

BARRIERS TO COMMUNICATION PERCEPTION INFERENCE SYMBOLS OVERLOAD NOISE AGE GENDER FILTERS SOCIAL STATUS MARITAL STATUS EDUCATIONAL BACKGROUND

COMMUNICATION IS AN ESSENTIAL SKILL FOR SUCCESS UNDERSTANDING OF TASKS BUILDS TRUST AND RAPPORT ALLOWS A 2-WAY FLOW OF INFORMATION AND ENCOURAGES SUPPORT/FEEDBACK STRENGTHENS PERFORMANCE HELPS DEVELOP AN ATMOSPHERE WHERE OPINIONS ARE IMPORTANT AND DIVERSE OPINIONS ARE ENCOURAGED AND AIRED SERVES AS A MOTIVATOR NOT ALWAYS WHAT IS BEING SAID BUT RATHER HOW I REACT/RESPOND

Questions to Ask the Attorney 1.What is my task? 2.Who is my audience? 3.Will I need to prepare a written report and for whom? 4.When is the report due? 5.Are you available to assist me in preparing for my testimony?

What is my task? Fact/Lay/Records witness Fact/Lay/Records witness giving an opinion Expert witness giving an opinion

Who is my audience? Deposition Judge Pretrial (Daubert Hearing) Trial Jury

Will I need to prepare a written report and for whom? How do I explain what I did? If I will have to explain why I did something, I will need a report.

When is the report due? Court imposed deadlines Attorney imposed deadlines

The report is my blueprint for my deposition. My deposition is my blueprint for my trial testimony. CAVEAT:

Are you available to assist me in preparing for my testimony? Fear Factor When I testify I have difficult with ____. CAVEAT: You need to have confidence in your testimony before testifying.

Fact Witness (Lay Records Witness) You must be able to establish the foundation requirements. You must do it in a way that maximizes the weight the jury will give to the exhibit. You must be prepared to read and explain the contents of the record.

General Rule: Business Records are hearsay and therefore not admissible evidence at trial. Exception: Business Records Exception is created so that reliable records are admissible evidence at trial.

To determine reliability the court wants the following questions answered: Did you collect this data? Did you do it accurately? Can you explain what you are relying on is reliable? Caveat: The more remote you are from the source, the more vulnerable you are on cross examination.

FRE Rule 701. Opinion Testimony by Lay Witnesses A lay witness can testify in the form of opinions in the following limited ways: A. If the opinion is rationally based on the perception of the witness B. If is helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and C. it is not based on scientific, technical or other specialized knowledge within the scope of Rule 702.

FRE Rule 702. Testimony by Experts (Daubert Hearing) If scientific, technical, or other specialize 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

DAUBERT FACTORS In ruling on admissibility, the court considers a flexible list of factors including: 1. Whether the theory can be or has been tested – that is, whether the expert’s theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonable be assessed for reliability;

2.whether the technique or theory has been subjected to peer review and publication; 3.the known or potential rate of error of the technique or theory when applied; 4.the existence and maintenance of standards and controls; 5. whether the technique or theory has been generally accepted in the scientific community. DAUBERT FACTORS con’t.

KUMHO TIRE EXPANSION The Supreme Court has held that similar scrutiny must be applied to non-scientific expert testimony.

FRE Rule 703. Bases of Opinion Testimony by Experts The facts or data need not be admissible in evidence in order for the opinion to be admitted. However, before the disclosure of inadmissible evidence is presented to the jury, the judge will determine if its probative value is outweighed by its prejudicial effect.

FRE Rule 704. Opinion on Ultimate Issue FRE Rule 705. Disclosure of Facts or Date Underlying Expert Opinion FRE Rule 706. Court Appointed Experts

THE PURPOSE OF CROSS EXAMINATION To elicit favorable testimony Getting the witness to agree with those facts that support the opponents case and are consistent with the opponents theory of the case. To discredit unfavorable testimony Getting the witness to answer questions that will discredit him on his testimony so that the jury will minimize or even disregard them.

Things to Remember During Cross Examination The farther away from the source you get the more vulnerable you are on cross examination. Stay within your area of expertise. If the report contains data supplied by someone other than you, make sure it is reliable. Only answer the question asked. Volunteering information creates vulnerability on cross examination.

Bibliography Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Kumho Tire Co. v. Carmichael, 119 S.Ct (1999). Mauet, Thomas A. Fundamentals of Trial Techniques. Boston, Mass.: Little, Brown and Company, Andreas, Steve and Charles Faulkner, eds. The New Technology of Achievement. New York, N.Y.: Quill William Morrow, Comprehensive Public Training Program, Participant’s Manual. Effective Performance Management: Goal Setting, Communication, Discipline & Documentation. Baton Rouge, La.: Public Management Program, 1999.