Trial Preparation for Vocational Experts: A Defense Perspective Patrick C. Burt Litigation Attorney/Shareholder Kipp & Christian, PC Kourtney Layton Vocational Analyst Kourtney Layton & Associates
Agenda/Presentation Goals Prepare both new & seasoned vocational experts for exemplary performance in depositions and at trial. Learn strategies for evaluating a case from referral to trial/deposition. Outline a document request list. Outline rules governing expert testimony. Discuss expectations for interactions between vocational expert and counsel. Develop strategies for effectively working with the collaborating attorney. Review purposes and objectives of expert depositions and trial testimony How to prepare retaining counsel. Learn skills to deftly handle cross examination from opposing (defense) counsel General courtroom and deposition etiquette. Identify pitfalls in testimony. Review case studies to gain a better understanding of how to avoid common mistakes and best prepare for examination and cross examination.
Who Has Been To Trial? New Experts? Seasoned Experts?
Strategies for Evaluating a Case Do a thorough examination. Identify problems. Keep detailed notes. Treat every case the same, regardless of who hired you. Evaluate the case from the other side. Address everything you can in your report.
Document Request List Evaluee name, Date of Birth, Date of Injury; Date of Loss (if different than DOI); Evaluee s contact information; Employment History (resume or historical employment summary); Information about any paid employees; Copies of full medical file plus any medical summaries already completed (electronic records are preferable); If a Life Care Plan is requested, we ll also need copies of all medical bills and any physician recommendations regarding future medical care; Earnings records (taxes, 1099 s and W2 s, if applicable); All expert reports (IME s, impairment ratings, FCE s, etc.). The key is to ask for everything.
Rules Governing Expert Testimony Patrick advises attorneys, Don't give them (your experts) evidentiary rules to memorize or worry about. Rule 702 Rule 26
Strategies for Effectively Working with the Collaborating Attorney Identify the key issues in the case. Openly discuss any problems with the case. Provide counsel with a list of direct exam questions. Ask counsel to provide you with their list of direct exam questions. REVIEW IT BEFORE TRIAL and amend as necessary. Review any visual aids or exhibits they ll be using during your testimony. Practice with them; including a vigorous cross-examination. Ask counsel to explain his or her strategy and your role in it. Inquire about the demeanor and habits of the opposing attorney. Have some idea of his or her approach and how you might expect to be treated.
Counsel s Perspective: Preparing the Expert Plan for the tough questions that the other side will ask. Prepare for the awkwardness of the triangle conversation with the jury. Share whatever exhibits you plan to introduce through the expert. Meet with your experts, even if they have testified a million times. Anticipate the opposition i.e. What is their primary offense/defense?
Purposes and Objectives of Expert Testimony at Depositions and Trial Kourtney says: My job is to teach the jury or the trier of fact. I am not invested in the outcome of the case, regardless of which side hires me, so my job is only to state the facts and my findings. What is the objective with this particular witness?
Strategies Opposing (Defense) Counsel May Use Rules, principals, and standards i. Identify standards of conduct. ii. Simplify the rule. iii. Get the witness to agree. iv. Examples: 1. Everyone should keep their promises. 2. It is unsafe to drive without adequate sleep. 3. Heights over six feet require fall protection.
Strategies Opposing (Defense) Counsel May Use Open-ended Questions and Exhaustion i. Start with open-ended questions and move to more specific; ii. Stick to your outline; come back to interesting tangents later; iii. On the other hand, don t outline every question; listen to the deponent and get the hidden nuggets. iv. Make sure you know everything the witness knows about a subject before moving on.
Strategies Opposing (Defense) Counsel May Use Boxing In (making changes difficult) i. Witness does not recall; ii. Witness has expressed an opinion; iii. Make sure the witness has all the facts, witnesses, or documents which may lead to a different answer.
Strategies Opposing (Defense) Counsel May Use Restating and Summarizing i. Restate the key points the witness has already testified to; ii. iii. Get the witness to agree; Create a clean record that you can use at trial.
Strategies Opposing (Defense) Counsel May Use Loop Back/Skip Around If a witness is evasive or holds back on an important question, causally move on and loop back to the question, asking it in a slightly different way.
Strategies Opposing (Defense) Counsel May Use Close the Door/Finishing the deposition i. Thoughtfully answer the closing question of Is there anything else? ii. iii. Review your notes before you close; Take a minute (meet with retaining counsel if necessary).
Strategies Opposing (Defense) Counsel May Use Don't permit the witness to explain his answers.
Handling Cross Examination from Opposing (Defense) Counsel Don't become cantankerous on crossexamination. Continue to be honest and forthright. Control your face and your "disgust" on the stand or at counsel table. Don t fidget. Control the tempo of the examination with the timing of your responses. Ask counsel to re-state any questions you don t understand before answering. Don t guess what they re trying to say. Don t help counsel by restating their question. Make them earn their fee.
General Courtroom and Deposition Etiquette Appearance Demeanor Preparation
General Courtroom and Deposition Etiquette Appearance Don t wear anything too distracting, including jewelry. Be mindful of your attire. Dress accordingly. Is it a deposition? Arbitration? Jury trial? Look at the jury every once in a while, but not with every answer. Be conservative. Cover any visible tattoos.
General Courtroom and Deposition Etiquette Demeanor Remember, your job is to be helpful. Say "Your Honor" or "The Court" and not "Judge" in open court. Get to know the judge and his/her preferences prior to trial, if possible. Ask the attorney who retained you for any tips or read the bench books: (http://litigation.utahbar.org/benchbooks.html) The moment the judge starts speaking, you stop. Period. Don't call opposing counsel by first name, but instead Mr. Johnson or Mrs. Smith. Look at the jury every once in a while, but not with every answer. Remember: the jury is watching everything you do.
General Courtroom and Deposition Etiquette Preparation The greatest experts make it a point to be the best prepared person in the room. Exemplary performance in depositions or at trial begins the day you start reviewing the case. Don't bring notes unless you want to let the other side see them.
Preparation is the great equalizer. You can t match a veteran attorney in intuition and facility, but you can prepare harder and better thereby leveling the playing field.
Pitfalls in Testimony Lack of preparation; Trying to be a lawyer; Not telling the truth; Being too invested in the case; Making careless mistakes; Rambling; Getting trapped by isn t it true questions; Answering too quickly (not waiting for the full question); Not being precise with language or terms (allowing counsel to conflate terms).
Case Studies
I once had an expert thank me for having a prep meeting with her prior to arbitration. She stated that she had never had an attorney meet with her prior to trial. I was shocked.