1. W. John Tietz, Esq. Browning, Kaleczyc, Berry & Hoven, PC

2. What is an Expert Witness  Expert witnesses are people with particular knowledge, skill, experience, training, or education that goes beyond the experience of ordinary members of the public  Attorneys use experts to explain or convey a particularly technical, complex, or advanced concept to the jury in a way that they can understand

3. What is an Expert Witness Expert witness may be used in many types of legal proceedings  Federal Courts  State Courts  Administrative proceedings  Arbitration proceedings

4. Engineering Expert Witnesses  Motor vehicle collision analysis and reconstruction  Construction defect and failures  Product liability and failure  Structural defect and failure  Surveying  Landslides and geotechnical failures  Drainage problems  Industrial accidents  Environmental issues  And many others

11. What is the Expert’s Function  Educate the attorney  Case evaluation  Assist in case development  Provide written reports  Prepare demonstrative exhibits  Testify at deposition and/or trial

12. What Makes a Good Expert Witness  Compatibility – expert and attorney must have a good relationship  Presentation – expert must be someone the judge and jury will understand, respect, and trust  Pedigree – need the requisite education, degree, credentials, experience and skills in the subject at issue

13. What Makes a Good Expert Witness  Licensure – licenses and certifications that are typical in their field  Knowledge – specific knowledge regarding the issue in the case  Publications – experts who are published appear to be more knowledgeable and authoritative  Honors – experts with honors or accolades for their work are generally more respected

14. Qualities of a Good Expert Witness  Ability  Must speak clearly and convincingly  Must be able to explain complex terms and issues to the jury in a way they can understand  Must be able to explain their opinion and how it relates to the specific facts of the case at hand

15. Qualities of a Good Expert  Expertise  An expert must have knowledge, training, and experience in a field of specialty  Must be legally qualified as an expert – opinions must be reliable and relevant  Confidence  Expert must be able to develop and maintain an opinion about the issue involved in the case

16. Qualities of a Good Expert  Time  Expert must have the time to spend researching, analyzing, developing, and educating the attorney on the opinions  Expert needs to be in for the long haul. Cases may take months or years to resolve. Expert needs to be able to commit to meeting the case deadlines

17. Qualities of a Good Expert  Composure  Experts are often extensively cross- examined at trial by the opposing attorney  A good expert will remain calm and cool under pressure, stick to his or her opinions, and not waver  A good expert will convey authority and conviction in his or her testimony

18. Legal Qualifications of an Expert Federal Rules of Evidence - Rule 702 A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the fact of the case.

19. Legal Qualifications of an Expert Under the federal rules, expert testimony must be reliable and relevant to the issue in the case The United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. articulated the factors to determine whether expert testimony was reliable Court stated that the district courts are the “gatekeeper” of reliable expert testimony

20. Legal Qualifications of an Expert The Daubert factors: 1. Whether the theory has been subject to empirical testing; 2. Whether the theory or technique has been subject to peer review and publication; 3. The known or potential error rate of the particular technique; and 4. Whether the technique is generally accepted in the relevant scientific community.

21. Legal Qualifications of an Expert Montana Rules of Evidence – Rule 702 If scientific, technical, or other specialized 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 educating may testify thereto in the form of an opinion or otherwise.

22. Legal Qualifications of an Expert Montana factors for testing expert reliability: 1. Whether the expert field is reliable; 2. Whether the expert is qualified; and 3. Whether the qualified expert reliably applied the reliable field to the facts. Dauburt factors only applied in cases where the expert testimony involves “novel” scientific evidence.

23. Types of Experts  Testifying experts  Non-testifying experts

24. Testifying v. Non-Testifying Experts  Testifying experts will be disclosed to the opposing party and will testify in court  Retained to provide opinions that will be presented to the jury  Will write a report or otherwise disclose the expert opinion and the basis for that opinion  Notes and work product may be discoverable. In state court, the expert’s communications with counsel are also discoverable  Are subject to deposition by the opposing party  Will testify at trial and be subject to cross- examination

25. Testifying v. Non-Testifying Experts  Non-testifying experts are typically not disclosed to the opposing party, and will not testify in court  Retained to help educate the attorney, evaluate the case, provide perspective, find other experts  Will not write a report or disclose opinions  Notes and work product typically not discoverable  Typically not subject to deposition by the opposing party

26. The Expert Witness Process  Retention  Evaluating the facts and developing opinions  Writing reports  Testifying at deposition  Testifying at trial

27. Retention  What is the expert’s roll in the case?  Scope of the expert in the case?  Testifying or non-testifying expert/consultant?  Written report required?  Rebuttal expert?  Conflicts  Who are the parties?  What is the ultimate issue in the case?  Prior inconsistent expert testimony.

28. Retention  Qualifications  Education, training, relevant experience  Prior testimony  Publications  Blemishes on record  Compensation  Experts are typically paid by the attorney  Experts typically charge their standard rates or slightly more  Submit detailed bills without disclosing work product in the description of services

29. Evaluating Facts and Developing Opinions  Attorney is advocate for client – expert must be objective in his or her analysis of the facts and development of opinion  Determine the attorney’s objectives and what issues you will be analyzing  Clearly establish your role in the case

30. Evaluating Facts and Developing Opinions  Outline your normal analytical procedures and receive attorney approval to implement them  Advise attorney if there are photographs, interviews, testing, or other analysis that must be taken or performed  Identify key documents that need to be obtained for your evaluation  Familiarize yourself with all relevant aspects of the case to know where your opinions fit

31. Evaluating Facts and Developing Opinions  Review all documents provided to you by the attorney  Determine if there are holes or gaps in the evidence that need to be filled by testing and analysis  Make sure you are provided with all of the relevant evidence

32. Evaluating Facts and Developing Opinions  Develop your opinions based on the facts of the case and your experience, knowledge and training  Make sure your opinions are objective and defensible  Opinions may rely on facts and/or data that may or may not be admissible at trial  Opinions must be “to a reasonable degree of engineering / scientific probability”

33. Basis of Expert Opinion Federal Rules of Evidence – Rule 703 An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

34. Basis of Expert Opinion Montana Rules of Evidence – Rule 703 The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in a particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

35. Expert Reports Written reports are required in Federal Court, and may be required in state court or administrative proceedings.  Written reports are required under Rule 26 of the Federal Rules of Civil Procedure, and must contain:  Statement of the opinions to be expressed by the expert;  Basis and reason for the opinion;  Facts and data considered in forming the opinion;  Any exhibits that will be used to summarize or support the opinion;

36. Expert Reports  Contents of written reports continued:  All information considered in forming the opinion;  Experts qualifications, including a list of all publications authored in the previous 10 years;  Al list of all cases in which the expert testified in the previous 4 years; and  Compensation paid to the expert.

37. Expert Reports State Court Rule 26 of the Montana Rules of Civil Procedure provides: A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

38. Expert Reports Work with attorney in developing the format of the report, but don’t be influenced by counsel as to findings and opinions in the report  Understand the legally important issues you need to address  Length and style of report  Specific topics or issues that need to be addressed  Specific topics that should not be addressed

39. Expert Reports  Expert report must have the power of persuasion, but do not be an advocate - the report must be objective  Be mindful of audience - expert reports are written for the judge and the jury to help them understand the facts of the case and the opinions of the expert  Write for an intelligent lay audience  Minimize jargon and acronyms  Define jargon and acronyms that are used  Be succinct

40. Expert Reports  Write in an active voice  Cite all material referenced  Explain all complicated concepts  Explain even the seemingly simple concepts  Remember drafts and correspondence may be discoverable  Edit the same file  Do not use successive revisions  Label report as draft until finalized

41. Expert Reports  Include all charts, graphs, quotes, etc. that you may want to use as exhibits in court  State conclusions clearly and affirmatively  Be professional  Cover sheet  Citations  Spelling  Grammar and punctuation

42. Expert Reports General format of an Expert Report  Summary of the Opinions  Process of evaluation  Statement of opinions and basis for the opinions  Specific supporting data or evidence  Testing or analysis performed  Description of information relied upon  Listing of information considered

43. Expert Reports General format continued:  Description of qualifications (e.g., copy of CV)  Publications in the past 10 years  Prior testimony for past 4 years  Compensation received  Report must be signed

44. Rebuttal Experts Rebuttal experts are used to contradict the opposing party’s expert and convince the jury that the opposing expert’s opinions should be rejected.  Point out any incorrect or inaccurate methods used by the opposing expert  Point out facts that the opposing expert failed to analyze  In federal court, rebuttal expert will write a rebuttal report

45. The Deposition

46. A deposition is testimony taken in a question and answer format, under oath before a court reporter Depositions may be videotaped. The deposition is taken by opposing counsel in order to:  Learn about the expert’s qualifications;  Lean about the expert’s opinions;  Determine what opinions the expert will and will not proffer at trial;  Learn what facts the expert relied upon in reaching the opinion; and  Evaluate the expert’s knowledge, credibility, and bias. Opposing counsel has great leeway in asking questions

47. Preparing for the Deposition  Deposition notice will state the time and place of the deposition and will likely request the expert to bring his or her entire file  Review the file and know what is in it  KNOW THE FACTS OF THE CASE  Review your expert report, your rebuttal report, and the reports of the other experts on both sides of the case  Review the documents upon which your expert report relies

48. Preparing for the Deposition Meet with the attorney before the deposition.  Understand the likely scope of the deposition  Ask about the attorney that will be taking the deposition and that attorney’s likely goals  Review the reports of the other experts  Review your file and any documents upon which you relied  If this is your first deposition, consider a mock deposition with counsel

49. Preparing for the Deposition Be prepared to talk about:  When were you first contacted by counsel;  When were you retained;  What records were provided, when they were received, and from whom they were received;  When did you form your opinions in the case;  Education, training experience, publications, and prior testimony;  Reports authored in other similar cases; and  How much the expert has charged in this case.

50. The Deposition  Tell the truth – the deposition is under oath and has the same legal significance as testifying at trial  Stand tall – state opinions with confidence and do not back off on your opinions  Actively listen to the question asked and answer only that question  Do not guess at the meaning of a question – ask the attorney to rephrase or repeat  Answer the question, and STOP  Don’t be afraid to say “I don’t know”

51. The Deposition  Speak clearly and slowly so the court reporter can get everything down  The attorney intentionally misstate or omit a critical fact, no not answer the question you think the attorney meant to ask  Be particularly careful with hypothetical questions  Do not guess - refer to your expert report to answer  If deposition is videotaped  Be aware of personal appearance and demeanor  Be cautious of tone and facial expressions  Do not argue with opposing counsel and do not lose your temper

52. The Deposition  Take your time - pause before answering to collect your thoughts and allow counsel to object to the question  Request to take a break if you need one  Do not speculate  Do not be an advocate  Be sure to read and sign your deposition transcript

53. Trial Testimony

54.  At trial, the expert will be directly examined by the attorney, and cross-examined by the opposing party’s attorney  Direct examination involves answering open ended questions from your attorney  Opportunity to impress the jury with your qualifications  Take on roll as teacher educating the jury on the technical subjects they need to understand your opinions

55. Trial Testimony  Teach as though you were teaching a group of eighth graders  Technical expertise is useless if you cannot explain the concepts in simple enough terms that the jury understands them  Use demonstrative exhibits when possible  Opinions must be stated as to “a reasonable degree of (engineering / scientific) probability”

56. Surviving Cross Examination  Cross examination is the opportunity for opposing counsel to undo everything you accomplished on direct examination  Be prepared, know the facts of the case and the contents of your report and the reports of the other experts  Most if not all questions will be leading – know how to deal with them  Anticipate that you will be attacked on your qualifications, expertise, methodology, and reliability of your ultimate opinions

57. Surviving Cross Examination  Stay cool, calm, and collected - do not lose your temper, be evasive, or defensive  Do not argue with opposing counsel  Ask counsel to restate the question if you do not understand it  Answer the question, and STOP  Do not guess – refer to your report

58. Conclusion  Being an expert witness is not for everyone, but it can be invigorating for those that are well suited to it  This is just a start. More education and training is needed before you take on your first expert witness case