Resources for Attorneys

ExpertwitnessliabilityWhen an expert witness testifies and a case is lost, most people would believe, correctly, that the expert does not receive any blame, at least not in the legal sense. In fact, for years, the U.S. has followed a common law doctrine that quite simply did not allow expert witnesses to be the subject of civil lawsuits for alleged malpractice. However, a number of states and a few court cases have made this landscape shift just a little, and it’s important to know what the risks are for experts and the attorneys who employ them. See, e.g., “This is Real Law: Expert Witness Malpractice: Making the Case For—And Against—Civil Liability,” Lexis Nexis Editorial Team. Feb. 24, 2014.

In recent years, cases have arisen where the testimony of a friendly expert witness has been cited by a judge as not only lacking credibility but also being the reason why a particular case was thrown out. Twice in 2013, a New York District Court judge tossed plaintiffs’ cases on the grounds that the experts for the plaintiffs were unreliable and implicitly negligent in their testimony. Id.

These cases aren’t the only law on the books that speak to this issue: There are a number of states that now permit malpractice claims against expert witnesses, including California, Connecticut, Louisiana, Massachusetts, Missouri, and Pennsylvania. Id. In New Jersey and Vermont, court-appointed experts can be held liable for negligent performances, and New Jersey and West Virginia have even addressed the possibility of suing an adverse expert witness for allegedly giving negligent or improper testimony. Id.

The danger does not end with experts, however. If an expert is considered to lack credibility or reliability by a court, the risk exists that the attorneys who hire those experts could also be in jeopardy. Specifically, California and New York have already begun to address attorney liability from purportedly negligent expert testimony. Id.

The question is: Where are we now, and what can experts and attorneys do to avoid these potential consequences?

Throughout most of our judicial history, and even in the current majority of jurisdictions, experts cannot generally be sued for giving testimony, even if that testimony was cited as the reason a case was thrown out by a particular judge. However, that doesn’t mean the protection or witness immunity is absolute. To give an example, many professional organizations, such as the American Association of Neurological Sciences (AANS) have guidelines for their professionals concerning expert testimony. And, more importantly, the AANS was permitted to impose sanctions on one of its members for giving allegedly improper testimony in 2001. See Austin v. AANS, 253 F3d 967, 968 (7th Cir 2001). Great Britain even changed its national policies in 2011, doing away with complete immunity for expert witnesses.

The questions raised are simple: First, how probable is the erosion of expert witness immunity, and second, what should attorneys and experts learn from the recent case law and legislation?

The first question, fortunately, is fairly easily answered, for now. Except for the handful of states that have decided otherwise, expert witness immunity is fairly intact. Opposing expert witnesses are nearly never at risk for civil liability, no matter what the circumstances.  Your retained experts, on the other hand, face a somewhat higher level of scrutiny, but still, the law is largely behind them. The age-old rationale of not penalizing a witness for giving potentially valuable testimony is largely intact, which should allow most experts and attorneys to breathe a collective sigh of relief.

The second question, however, is the one that is a bit more complicated, and that pertains to what attorneys and experts should do, considering the fact that a jurisdictional split on expert liability does exist and that the future is uncertain.

The best way to resolve this second issue may involve examining what gives rise to malpractice actions in the first place. Simply put, what rationale exists for malpractice complaints? The answer is what any plaintiff must prove to prevail in a negligence action: that someone owed someone else a duty of care, which was somehow violated, and that the violation resulted in a specific, quantifiable injury. As one legal team put it, “Regardless of whether an expert is exposed to the possibility of sanctions…most attorneys would agree that those who take on the role of expert witnesses owe a duty of care to their clients, as well as an overriding duty to the courts.” See “This is Real Law,” Supra. That duty of care is a simple one: a duty to testify truthfully, to the best of an individual’s knowledge and ability.

In general, it is difficult to prove malpractice by a witness ; moreover, the fact that a party is unsatisfied with the testimony an expert gave, or even with the result itself, is not proof of negligence or malpractice. Rather, as one publication explained, “As in other malpractice actions, it must be found that the expert performed below the standard for the profession [that the expert] represents, and that this substandard behavior caused the party’s injuries. Thus, the party claiming malpractice must show both the standard for such experts and that, but for the expert’s deviation from the standard, the party would have won.” Edward P. Richards & Charles Walter, “When are Expert Witnesses Liable for their Malpractice?”, Engineering in Medicine and Biology Magazine, Aug. 15, 2004.

Clearly, the burden to hold an expert accountable for negligence is a high one, so experts can rest assured that generally, their testimony will not give rise to a lawsuit.

However, two important lessons are to be learned from the current state of affairs regarding experts and malpractice.

First, it isn’t only testifying experts that may be at risk in the jurisdictions that do allow malpractice claims. Attorneys may be implicated, as well, for not vetting their experts properly or thoroughly enough. Moreover, as some legal analysts have noted, it isn’t only the testifying experts who owe a duty of care to clients and who may be implicated by civil suits. Consulting experts may also face liability; indeed,  one analyst argues, “Allegations of misconduct in forensic exam, review of claims, filing of reports, or other extrajudicial practices may allow plaintiffs to get around the immunity protection afforded to experts who take the stand.”  Kimberly Wittchow, “Forensic Consulting: From Immunity to Liability,” Risk Management, Summer 2003. Therefore, all experts, whether testifying or not, should be on notice, and attorneys should be as well.

More importantly, however, is what attorneys and experts should learn from the current splits in jurisdictions regarding immunity. The duty is clear: Understand that each expert (and, by extension, each attorney who retains an expert) owes a basic duty to perform their job in a professional manner, and that each client is owed that duty of care.

Conclusion:

Although complete immunity for expert witnesses has eroded somewhat, the majority of jurisdictions still will not hold an expert accountable in a malpractice action, particularly if it is simply a matter of a dissatisfied client or someone who wishes the result of a particular case had been different. The lesson for attorneys is to be extremely exacting when in the process of selecting an appropriate expert. Attorneys should vet their experts carefully and, if they do perform their own due diligence in choosing a particular expert for a job, should rest assured that no liability will ensue. Expert witness service providers are a good place to start, as they have already performed a substantial amount of vetting, and they are well-seasoned in matching the right experts with the right attorneys. Taking advantage of these services and keeping their eyes open will go a long way towards protecting both the attorneys who retain needed experts and the experts who ultimately assist in a case.

By: Kat S. Hatziavramidis, Attorney-at-Law

Expert Witness CredentialsThe educational background of an expert witness is one of the considerations involved in the expert selection process.  There is a distinction between the quality of education versus the quantity of degrees. While the number of degrees possessed by an expert can certainly be of value, understanding the quality of such degrees is of equal importance. Factors such as the accreditation, reputation, and the type educational institute can contribute to the overall perception of an expert witness at trial.

The date a degree was attained by an expert, as well as the progression in education should be taken into consideration while assessing an expert’s educational background. It is helpful to view the entire educational background chronologically, while considering any inferences that can be made from the presence of gaps in time between education, or the length of time in attaining a degree when compared to customary time lengths.

In some cases, extended gaps in time may have served to benefit the expert’s overall educational process, such as when an expert was employed or gains further experience in a field directly associated with a master's degree, and then subsequently returns to school to attain a higher degree in that particular field or a specialized subsection of that field. In other cases, negative implications may arise from extended gaps in time between educations. It's generally wise to inquire with an expert witness about his or her education history as part of the qualification process.

Some experts received an education aboard and it is usually acceptable if the expert witness is licensed and/or board certified in his or her area of practice.  Litigators vetting an expert should determine if the foreign education is comparable to education received in accredited educational institutions in the United States, if the education degree is relevant in that specific area of expertise.

Litigators should also review an expert’s participation in continuing education. For many experts, their continuous education and training are necessary to maintain certification and licenses. It also reflects the expert’s effort to stay up-to-date on the industry best practices. Credentials that demonstrate extensive continuing education can often signify specialized expertise in a distinct subpart or parts of a particular discipline.

In some cases, the nature of the dispute and the issues involved demand a precise level of degree, such as medical experts.   In other cases, an expert’s overall skills, experience, reputation amongst peers, and other relevant factors, can make one expert a more appropriate choice over another. Keeping in mind that not every dispute requires an expert with a doctorate level degree or its equivalency, can prevent the initial rejection of potential experts who may have been the best choice. Making this determination, however, must be done on a case by case basis.

As a final corresponding thought, the proper assessment of an expert’s educational background demands a simultaneous analysis of any other factors contributing to an expert’s level of expertise. We encourage you to view our other resources associated with the expert selection process.

 

By: Alicia McKnight, J.D.

ExpertNavigating through the abundance of information contained within an expert’s CV, can be both a difficult and time-consuming process. In addition to prior experience and level or degree of education, there are a variety of other factors that can greatly contribute to the overall level of expertise, such as certifications, licenses, publications, memberships, affiliations, awards, and general reputation in the community. By understanding some basic assessment principles, practitioners can more easily determine the value and significance of a particular professional designation, credential, or other qualification associated with an expert.

Certifications

There are many potential certifications that an expert can acquire to demonstrate their expertise in a particular discipline area. While it is unnecessary to attempt to set forth an endless list of potential certifications and the value of each, it is perhaps more practical to provide some guiding principles that can enable attorneys to properly evaluate any certification.

The first step in assessing a certification held by an expert, is identification of the certifying entity, whether organization, association, institution, or otherwise. Practitioners should then examine the value and significance that this certifying entity holds within a particular field, industry, or expert discipline area. For example, has the certifying entity gained national or international recognition as a necessary, customary, and/or acceptable standard used for establishing and validating expertise in a particular area? In other words, is one entity the primary source of certification for a discipline area, or are there other conventional methods, sources, or types of certification that equally valuable?

Another helpful consideration in assessing expert certifications, is examining the criteria an expert must meet in order to become certified. Many certifications require an educational degree in a specific field, as well as a minimum number of years of experience sufficient enough to demonstrate active and consistent participation in a discipline area. In addition to examination requirements, some certifications require a written report or professional paper that has either been published or accepted for publication by a professional journal.

In some cases, an expert must already possess one or more specified certifications, in order to meet eligibility requirements for further certification. Some certifications processes even go a step further, by requiring references and/or letters of recommendation. As a general rule, the more stringent the certification criteria, the more valuable the certification will be to the process of identifying and qualifying an expert.

Licenses

Much of the criteria used to evaluate an expert’s certification, can also be used in examining a particular license held by an expert. However, in contrast to certifications, the benefit, value, and necessity of licensing in a specific area, is most commonly limited to two key scenarios. First, a professional license may have served as a foundational basis for expertise—in other words the license is associated with prior employment or experience that contributed to and eventually led an individual to become an expert witness.

The second common scenario in which licensing can play a critical role is where an expert is engaged for a limited purpose, such as assessing the validity of a claim or dispute, or providing testimony on a matter directly related to a certain profession. For example, in cases where either a potential claim or issue in dispute, hinges solely upon the procedures, techniques, methods, or general practices employed by an individual licensed in a specific field, then it may be necessary to select an expert that is licensed in that same field.

Publications

As stated earlier, published work may be a prerequisite to the attainment of some certifications. In some cases, educational institutes of higher learning will also require a professional, technical and/or analytical paper, report, thesis, manuscript, dissertation, or the like, that meets or exceeds a level of quality acceptable for publication. It is important to distinguish between scholarly sources of published material, as opposed to other means of public dissemination having a lesser value or inconsequential significance.

An expert’s published material should be evaluated in a manner similar to the manner in which certification are assessed based upon the repute of the certifying entity. In other words, practitioners should examine the value of the source within a particular field. A useful way for practitioners to determine the value of a publication is by considering the manner in which sources are generally cited in order of their authoritative weight, significance and/or importance.

In accordance with assessing the quality of published materials, be careful to pay close attention to any inferences gained from an expert that has numerous publications. For example, has the expert authored multiple articles that cite to his own prior publications, or have sufficient primary and valuable secondary sources been utilized throughout, and in an appropriately supportive manner. In short, quality of publications is far more important than quantity.

Memberships & Affiliations & Awards

As you view an expert’s detailed list of credentials, you might notice a number of items listed within his or her CV that may be difficult to impute a value upon. Similar methods can be used to assess memberships and affiliations. One manner of assessment is by simply reviewing the requirements necessary to attain the credential status listed. An example, is payment the only prerequisite, or is more required? Also, what was the expert’s level of participation or involvement with the entity or organization? In addition, what features, resources, benefits, and/or opportunities does a particular membership or affiliation offer?

With memberships and affiliations in particular, it is important to differentiate between ‘filler’ content contained within an expert’s CV, and items having a logical correlation with the level of expertise. This is not to say, that an expert whom provides an extensive list of memberships and affiliations, should be exempted as a potential candidate. Rather memberships and affiliations should be considered as ‘finishing touches’ that compliment an expert’s other qualifying features. Often, an expert may be a member or affiliate of an entity or organization, but may have also served as an event speaker, or authored published content.

In some cases, membership or affiliation may occur as a result of, or in conjunction with, recognition received through an expert’s experience, efforts, and/or achievements. Again, it is helpful to examine the qualifying factors associated with the receipt of a particular award. For example examine both nomination and selection processes—Who can nominate an individual?; What are the perquisites and procedures involved?; and What does the selection process entail?

Reputation in the Community

For highly seasoned practitioners, gaging an expert’s overall or general reputation within his or her community of peers, can often be accomplished through a cursory view of the expert’s CV. Veteran trial attorneys generally know the value and significance of each item listed in an expert’s CV, and therefore know precisely what they are looking for. For newer attorneys, assessing an expert’s reputation is more effectively achieved through a careful analysis of each component of an expert’s credentials.

It is not uncommon for an attorney to perform a background search on an expert, in anticipation that a party opponent will do the same. Exclusion issues aside, the reputation or character of a witness can weigh heavily on opinions and beliefs reached by juror members. No practitioner wants to find themselves in a position where previously unknown information regarding the character or reputation of their key expert, results in an opponent presenting evidence to the jury which attacks or discredits the reputation, peer acceptance, or general reliability of an expert. Always keep in mind that, despite successful objections to an opponent’s inquiry during cross examination of an expert, suggestions may have already been implanted upon the jury.

Conclusion

There are a vast array of credentials that can be offered by an expert to demonstrate their level of expertise. Consequently, it is essential that practitioners acknowledge the benefit of possessing the ability to effectively identify all valuable indicators associated with an expert’s capability, preparedness, knowledge, skill, proficiency, and experience, whether on a limited issue or within a particular field, area, or discipline.

By: Alicia McKnight, J.D.

Expert Witness Experience The prior work experience of a potential expert witness is perhaps one of the most crucial of considerations. Similar to other assessment processes associated with the selection of an expert, it is necessary to consider prior experience in conjunction with other credentials.   Litigators should examine the relevance between an expert witness’ prior experience and the needs presented by a particular dispute.

It may be helpful to differentiate the type of prior experience in relation to its application. For explanatory purposes, this discussion is set forth to go over three categories of prior experience: (1) Professional Background Experience; (2) Expert Witness Experience; and (3) Miscellaneous/ Other Relevant Experience.

I.  Professional Background Experience

‘Professional Background experience’ refers to any relevant skills, knowledge, and proficiency gained through the expert’s experience within a specific field, industry, or discipline area, that either contributed to becoming an expert or attaining a level of expertise, but that is unrelated to litigation or other legal support services. Particularly in cases where the dispute hinges upon compliance issues associated with government regulation and/or industry standard, an expert’s background experience be highly beneficial.

Examples include experience gained in previous employment; involvement in private or government funded grants for research, consulting projects, participation in trade associations.  Aside from reviewing the expert’s curriculum vitae, the litigator should ask the expert witness about his or her specific experience relevant to the issue of the case.  For example, if an attorney is looking for a general contractor for residential construction, the attorney should ask if the expert has dealt with the particular construction defect involved in the case.

Professional background experience should be reflected upon as a starting point in the assessment process. While an expert may be both qualified and proficient in a particular area, the expert might need sufficient experience in providing legal-support-related services, such that he or she is able meet the needs associated with the role a practitioner intends that expert to occupy.

II. Expert Witness Experience

In assessing expert witness experience, trial lawyers should take various factors into consideration. While the assessment of prior expert witness or legal-support-related experience is certainly beneficial for consulting experts, this consideration is more important for testifying expert witness. When an expert is expected to testify or be deposed, practitioners should carefully examine the expert witness’ prior testifying and deposition experience while paying close attention to several key factors. 

For example, the length of time that an expert has been providing expert services in the legal field as compared to the number of times the expert has provided testimony during this time. Viewing prior court opinions, case summaries, and when available, testimony transcripts can often provide trial attorneys with valuable insight regarding an expert’s overall capability, proficiency and effectiveness.  In examining prior testimony, emphasis should be placed on the outcome or results associated with the particular issues that the expert provided testimony on, as opposed to the result of the case as a whole. In other words, be careful to distinguish between inferences gained from prior cases. This notion is analogous to scenarios where case law may seemingly reveal a negative ruling, but the law on a particular subject still provides meaningful support to another matter relevant to the case at hand.

As an additional method of verification, reviewing the references provided by an expert can assist in ascertaining the value of an expert witness’ services, based upon the opinion of fellow legal professionals. It can also be helpful to ascertain the precise stage of litigation that the expert was engaged, as well as which stage a prior dispute was resolved. By understanding the role that an expert played throughout the entire resolution process, practitioners are better equipped to gauge the benefit and value of an expert’s prior services within a particular dispute. For example, was the expert engaged at initial dispute stages, and then matter was settled prior to trial? On the other hand, was the expert secured late in the dispute process, and perhaps given insufficient information?

III.  Miscellaneous/ Other Relevant Experience

The final distinction is a catch-all category for all other experience associated with the expert's ability to support the case.  Given the vast array of expert witness disciplines, a practical consideration to a prudent practitioner would involve an evaluation of all prior experience—while observing that an attorney’s expertise resides within the legal field and that an expert’s expertise resides in the area(s) needed to support or defend a case. As such, seemingly inconsequential experience of a particular expert may actual provide a valuable expert witness skillset.

The expert may have experience as an educator, such as a professor, adjunct professor, or instructor. This experience can be valuable, particularly when the expert is expected to testify, because the expert’s ability to instruct and explain can assist the trier of fact in understanding the issues at hand. Such experience can also demonstrate the capacity to respond to cross-examination because the expert has experience with responding to inquiries or challenges presented by his or her pupils.

In sum, examining prior experience is an essential component in assessing an expert’s credentials, and given that expert support services are fundamental to many disputed matters, this portion on the assessment process, in particular, should be undertaken in a careful and calculated manner.


By: Alicia McKnight, J.D.


Landfill zoningAmerican Jurisprudence states that it is common to use expert witness testimony at zoning board of appeals hearings, and courts have held that an administrative agency such as a zoning board of appeals can't disregard competent expert testimony and rely on its own knowledge on issues which the board members have no expertise.  However, representations of lay witnesses don't necessarily have to be accepted.

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Free initial consultationThe purpose of the free initial discussion is to determine if and how an expert witness can help you in clarifying the technical and scientific issues, thus giving you the advantage for your case.  The initial conversation with experts can help you determine if you have the right expert discipline in mind.  The attorney can benefit by gaining better technical knowledge or clarification on the case without obligation.

The length of the initial discussion varies greatly depending on the expert and the type of case involved.  Some experts limit the initial phone conversation to 30 minutes while others are more flexible.   For example, medical doctors might limit the initial phone call to 15 minutes with an attorney on a personal injury matter.  On the other hand, a software engineer expert witness might spend over an hour on the phone with the patent attorney for a major patent infringement case.

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An attorney complied with Federal Rules of Evidence, gave disclosure of his expert witness, including any required written report or statement in lieu of a written report, and the case is moving towards a trial date certain.

Unfortunately, his expert witness unexpected passed away.  Such a statistically improbable event can, and does, happen.  An example is the high profile patent infringement case, Apple v. Samsung, where Apple’s initial damage expert witness passed away.

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Patent License AgreementAccording to data provided in PWC’s 2012 Patent Litigation Study, there was a decline in median damage award amounts of more than 50% in patent infringement disputes from the period between 2001 to 2005 and the period between 2006 to 2011—from $8.7 million to $4 million, respectively. What is most intriguing about this data is that there has been neither a decline in patent litigation, nor a decline in patent applicants. In fact, both have increased at a substantially similar rate.

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Calculating damages for royaltiesDamages for reasonable royalties, in comparison to damages for lost profits, generally correspond to an assumption based upon what the parties would have agreed upon if they had negotiated a royalty amount prior to an infringement. This concept is referred to generally as ‘hypothetical negotiation.’ There are several techniques, both using the hypothetical negotiation approach, as well as other more analytical based approaches, that have been used in prior cases for the calculation of reasonable royalty damages in patent infringement matters, including the 25 percent rule of thumb, Georgia-Pacific factors, and the Nash Bargaining Solution. In recent years, however, the techniques employed by experts in the calculation of royalty damages in patent infringement disputes, have been subject to heightened judicial scrutiny.

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Royalties in a cash bagCompensatory damages in patent infringement cases are generally based upon reasonable royalties, lost profits, price erosion, and in some cases, a combination. Pursuant to 35 U.S.C. 284, which provides in part, “Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.” As such, in cases where a claimant can prove, or elects to prove lost profits, this method will be applied. However, in matters where a claimant cannot prove, or elects not to prove lost profits, compensatory damages can be assessed based upon reasonable royalties.

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ForensisGroup articles provide information about legal matters related to the expert witness industry. Legal information is not the same as legal advice. While ForensisGroup goes to great lengths to ensure that the information it offers is useful and accurate, we always recommend that you consult a professional before acting on any legal information read on the Internet.

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