Training for Tomorrow: Teaching the Expert Who is Leader of the Band
By Gerald A. Klein
An orchestra must have a single conductor. Unfortunately, in many business cases, experts believe they should hold the baton. Surprisingly, many lawyers are happy to pass the baton to the financial experts – often leading to disaster. The purpose of this article is to encourage business trial lawyers to make sure they alone conduct the trial, not the expert.
The Importance of Experts in Business Cases
As the world becomes more complex, experts have become increasingly important in trials. Most jurors in business cases cannot balance checkbooks. Asking jurors to understand financial documents such as balance sheets, profit and loss statements, and other transactional business documents is too much to expect. Experts are essential at trial to help jurors make sense of complicated financial transactions. In some cases, admissible expert testimony is required to avoid a directed verdict.
The Role of the Expert
As noted above, there can only be one conductor of an orchestra and the conductor at trial must be the trial attorney. Only the trial attorney understands every aspect of the case and how the various “instruments” play together. While the expert may be the first violin in your evidentiary orchestra, experts often have myopic views of a case. They tend to overemphasize the importance of their testimony and fail to recognize how other evidentiary pieces fit together. It is, therefore, essential for the trial attorney to harmonize expert testimony with the rest of the trial presentation. Experts who cannot agree to this approach should not be hired. An expert cannot play one tune when the rest of the orchestra plays another.
Selecting an Appropriate Expert
Your choice of expert can be one of the most important decisions you make before trial. In some cases, even the best experts will not be able to explain sophisticated, scientific, or economic evidence to a jury in a way jurors can understand. In such cases, jurors will choose to believe the expert they find most credible – and just trust his or her testimony.
In presenting a credible expert, there are tradeoffs to consider. For example, professional experts who testify for a living understand the legal system and what is required to comply with discovery and handle cross-examination. But as professional witnesses and perceived “hired guns,” experts are seen by jurors as having biased views.
Experts who do not testify for a living are often recognized as more credible, as they are testifying about something they do for a living. For example, in a tire defect case, jurors may find the testimony of someone who has worked at a tire store for 30 years and has been called in as a consultant by one of the leading automakers more persuasive than a mechanical engineer testing a particular tire.
In selecting an expert, a trial lawyer must look for skeletons in the expert’s closet. A financial expert testifying about the standard of care for securities dealers will have zero credibility if that person had his or her securities license suspended. Likewise, trial lawyers are often surprised when an expert’s website discloses facts the expert never mentioned at the time of being hired. Before retaining an expert, a trial lawyer must do everything reasonably possible to investigate the expert and make certain there is no baggage that will open the expert up to self-destruction during cross-examination. If you do not perform this background check, you will be surprised when your adversary does.
For the most part, experts have one price: expensive. It is surprising how many financial experts have no clue about how many hours they are spending until they send the final bill. Clients expect their lawyers to manage expert costs. Moreover, the more an expert charges, the more suspicious jurors will believe the expert’s testimony was “bought and paid for.”
At the same time, lawyers must be careful to make certain experts have sufficient time to develop a credible opinion. Experts who prepare reports on the plane from Dallas to Los Angeles will be viciously ridiculed at trial. An opinion is only as good as the work that goes into it. Give your expert enough time to prepare a thoughtful analysis, but not an unlimited budget. A thorough analysis costs money but should not give license to six figure billings – except in the rare case.
Be Involved in the Formulation of the Opinion
Many lawyers went to law school because they are not good with numbers or could not stand the sight of blood. Such lawyers become squeamish working with financial or technical experts and feel they have little or nothing to add to an expert opinion. They do not want to do the math. These lawyers let the expert run amuck at trial. This is a big mistake on several levels.
As noted above, an expert’s testimony is just one component of a trial presentation. It is the trial attorney’s job to decide where the testimony fits into the trial. At some point, the trial lawyer must understand what the expert is saying and make sure that testimony is consistent with the case theme. If the attorney does not understand what the expert is saying, there is no chance jurors will. It is critical for competent trial lawyers to make certain they are involved in developing expert testimony from the beginning. The trial lawyer must make certain not only that the testimony helps the case, but must also make certain the testimony is understandable to ordinary people. Even professional experts sometimes bog down in technical jargon that no one but the lawyers and opposing experts understand. Incredibly, even after a great deal of money has been spent on an expert, he or she may run in the wrong direction because of having misunderstood facts or issues. The lawyer who does not get involved in expert testimony from the beginning has no one but himself or herself to blame for exorbitant bills and poor testimony.
Presenting Expert Testimony
It is not uncommon for trial lawyers to allow experts to outline their own testimony. Trial lawyers who allow experts to control their own testimony are not doing their jobs. Assuming the trial attorney has worked with the expert from the beginning of the case in developing opinions, that attorney should understand the testimony and know how to present it. Experts are highly qualified in their chosen fields of expertise – but they are not trial lawyers. Only a trial lawyer is competent to present a case.
In most cases, expert testimony should begin with a short introduction indicating to the jury that the expert is a hired witness who will testify about certain technical issues requiring expertise. Once this brief explanation has been presented, a trial attorney should present the expert’s credentials without boring people to death. As to witnesses such as economists, accountants, and bankers, spend time on the expert’s academic credentials and professional distinctions. If the expert has particular awards or areas of specialization, emphasize those points. For example, if your expert was one of the scientists who invented the atomic bomb, this is something impressive to the average juror. If the witness received a Nobel Prize for the subject of his or her testimony, not a lot of time needs to be spent on any other credentials.
But most experts will not have such stellar backgrounds. Nevertheless, if you spend time with your experts, you will identify credentials they may not have even recognized were important for your case. Pick and choose the important credentials which build the expert’s credibility.
Spend time in direct examination reviewing how the expert formulated the opinion. The more documents reviewed and the more time spent on a project, the more likely that the appropriate amount of work was done to formulate a reliable opinion. To the extent your expert rejected approaches you recommended or opinions that would have been helpful to your case, emphasize that your expert rejected such points to demonstrate objectivity. The fact that a highly-paid expert refuses to adopt all opinions requested has a great tendency to build credibility.
Make certain your expert testifies as a teacher, not a technician. A good rule of thumb is to have the expert explain things as he or she would to a 12-year-old. This can be done in a way that is not condescending to a jury. In that regard, virtually any business case will require experts to rely upon charts, graphs, PowerPoints, and the like. These demonstrative exhibits keep jurors engaged and help to explain complex concepts.
Finally, make certain the opinions are summarized, especially in cases where the testimony has been lengthy and complicated. Some trial judges will not permit such a summary, but most will.
While experts in business cases will always be important, they should never become the “leader of the band.” Only a trial lawyer who understands his or her case knows the best way to present expert testimony. Treat your expert as a valuable ally in the case presentation, but do not let your expert run the show. Effective presentation of expert testimony at trial only occurs when the expert and the trial lawyer have jointly developed the expert’s testimony for maximum effect.
This article first appeared in Business Law Today, March 2014.