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Transcript of March 9, 2011Experts and Lawyers - RJMorris1 FEWA – San Francisco Chapter Dinner Meeting, 3/9/11...
March 9, 2011 Experts and Lawyers - RJMorris 1
FEWA – San Francisco Chapter Dinner Meeting, 3/9/11
Experts and Lawyers:
A Marriage Made in Heaven (or elsewhere)?
by Roberta J. MorrisLecturer, Stanford Law School
March 9, 2011 Experts and Lawyers - RJMorris 2
Today’s slides are posted at http://stanford.edu/~rjmorris/fewatalk.pptx
The final version, including survey results,
will be linked on http://stanford.edu/~rjmorris.
Search for “FEWA.”
March 9, 2011 Experts and Lawyers - RJMorris 3
Outline
• What experts are here tonight?• Digression: Amendments to Rule 26• The Lawyer/Expert Relationship• The Best and The Worst of It
Experts and Lawyers - RJMorris 4
Your Expertise
March 9, 2011
1 2 3 4 5 6 7 8 9 10
1
0
1
0
6
1
0
1
2
81. DAMAGES (any liability
area)
2. Computer/IT
3. Criminal
4. Employment
5. Environmental, Products Liability, Real Estate, Construction
6. Insurance/Transportation
7. Law
8. Medical
9. Patent
10. Other
Experts and Lawyers - RJMorris 5
Experience (units = lawsuits*)
March 9, 2011
1 2 3 4
1
14
2
4
1. 0
2. 1 or 2
3. 3 to 7
4. > 7
* Arbitrations , legislative hearings, and the like, too.
Experts and Lawyers - RJMorris 6
Are you usually hired as:
March 9, 2011
1 2 3
15
1
5
1. A Testifying Expert
2. A Consulting Expert
3. Other
Experts and Lawyers - RJMorris 7
Your Fee
March 9, 2011
1 2 3 4 5
10 10
1
00
1. Single hourly rate
2. Multiple rates (different for trial, travel, etc.)
3. Flat fee/negotiated
4. Decline to state/different in different cases
5. Nobody ever asked
Experts and Lawyers - RJMorris 8
Your Hourly Rate
March 9, 2011
1 2 3 4 5 6
9 9
1
00
2
1. Up to 300/hr
2. 300-499/hr
3. 500-699/hr
4. 700-999/hr
5. 1000+/hr
6. Not applicable
Experts and Lawyers - RJMorris 9
Arrangement(in the majority of your cases)
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1 2 3
17
13
1. Written Contract
2. Oral Agreement/Informal
3. None yet.
Experts and Lawyers - RJMorris 10
Why be a professional expert? 1=only in it for the money and 9=only in it because it is fun. Where are you?
March 9, 2011
1 2 3 4 5 6 7 8 9
0
1
6
2
0
2
3
2
5
1. One
2. Two
3. Three
4. Four
5. Five (On the Fence)
6. Six
7. Seven
8. Eight
9. Nine
Experts and Lawyers - RJMorris 11
Have you as an expert:
March 9, 2011
1 2 3 4 5 6 7
2
0
1
15
1
0
1
1. Worked on an expert report (but never testified)
2. Testified at a deposition ONLY (no expert report, no trial)
3. Testified at a trial ONLY (no report, no deposition)
4. Report+Dep (no trial)
5. Report+Trial (no dep)
6. Dep+Trial (no report)
7. All 3
Experts and Lawyers - RJMorris 12
Rule 26Rule 26 was amended effective 12/1/2010. Which
of the following questions should I answer first?
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1 2 3
8
1
10
1. What is Rule 26?
2. What was changed?
3. How long will this take? I know all about it and will run out and make a phone call.
March 9, 2011 Experts and Lawyers - RJMorris 13
Rule 26 - Background
Rule 26 relates to pretrial DISCOVERY
in FEDERAL court cases.
States have their own rules.
March 9, 2011 Experts and Lawyers - RJMorris 14
Terms of Art
Such terms should be used with care.They don’t always mean what people think they mean.Anyone who DOES know what they mean may misunderstand if the term is misused.
March 9, 2011 Experts and Lawyers - RJMorris 15
Rule 26 - Background
Before 1993, testifying experts’ documents, like lawyers’ documents, were protected
from the duty to disclose
under the WORK PRODUCT doctrine.
In 1993, drafts of the expert’s report, all the expert’s notes, all communications with counsel, became discoverable.
Effective 12/1/2010, a semblance of sanity was restored.
Experts and Lawyers - RJMorris 16
Have you been affected by (old) Rule 26 with regard to notes, drafting reports, etc?
March 9, 2011
1 2 3 4 5
3
2
6
551. Yes, horribly so.
2. Yes, somewhat.
3. Yes, but no big deal.
4. No (no problems – consulting expert or state court cases only).
5. No (never had the privilege [NPI]).
March 9, 2011 Experts and Lawyers - RJMorris 17
New Rule 26(a)(2) and (b)(4)
•Draft expert reports are NOT discoverable. (This should improve scheduling issues.)
•Communications between expert and counsel are NOT discoverable (with 3 exceptions).
•On a showing of substantial need and undue hardship, the other side can still get discovery.
March 9, 2011 Experts and Lawyers - RJMorris 18
New Rule 26(a)(2) and (b)(4) – useful links
•Text of Rule 26, as amended. http://www.law.cornell.edu/rules/frcp/Rule26.htm
•Explanation of 2010 amendments: Excerpt from the Report of the Judicial Conference available at http://www.faegre.com/webfiles/Excerpt%20from%20the%20Report%20of%20the%20Committee.pdf
March 9, 2011 Experts and Lawyers - RJMorris 19
Summary of Changes to 26(a)(2)
•26(a)(2)(B)(ii) : “facts or data” replaced “data or other information.”
•A new provision for experts who do not write reports is inserted as 26(a)(2)(C). - They must disclose the subject matter of their
testimony and a summary of the “facts and opinions.”
•Old C and D are now D and E.
March 9, 2011 Experts and Lawyers - RJMorris 20
Summary of Changes to 26(b)(4) - 1
•26(b)(4) has two new provisions, (B) and (C), that explicitly confer protection from discovery on: - drafts “regardless of the form in which the
draft is recorded” and- communications with counsel, also
regardless of form -- with 3 exceptions.•Old B and C are now D and E.
March 9, 2011 Experts and Lawyers - RJMorris 21
Summary of Changes to 26(B)(4) -2• Protection from discovery is by invocation of
Rule 26(b)(3)(A) and (B).– They were not amended.
• 26(b)(3) is the WORK PRODUCT provision.• It recites that “Ordinarily, a party may not
discover … things prepared … for trial by or for another party or its representative…”– The parenthetical after “representative” that
begins “including …” does not say “expert” but does (and did before 12/1/2010, too) say “consultant.”
March 9, 2011 Experts and Lawyers - RJMorris 22
Summary of Changes to 26(B)(4) -3
• Communications between counsel and experts who write reports
that are NOT protected from discoveryare those that involve:
i. compensation, ii. facts or data provided by counsel and
considered in forming the opinion, and iii. assumptions provided by counsel and
relied on in forming the opinion.
Experts and Lawyers - RJMorris 23
Experts and Lawyers -A Marriage Made in Heaven?
March 9, 2011
1 2 3
45
11
1. Yes, sure.
2. Maybe. What do YOU think?
3. Nah. Purgatory is closer.
March 9, 2011 Experts and Lawyers - RJMorris 24
Experts and Lawyers - Marital Problems
• General– Communications (Talks/Listens - too little/too much)– Money (and communication about money)
• Courtship Problems: Being Chosen and Choosing
• After the Honeymoon – Time (Scheduling, Estimating)
• (Rule 26 changes will help)
– Flexibility/Adaptability
March 9, 2011 Experts and Lawyers - RJMorris 25
Experts and Lawyers:Courtship – Theatrical Analogy
An actor auditions for a part
and quickly realizes that
the script is stupid and
the director is incompetent.
The actor does not , however,
withdraw from consideration because,
“Any gig is better than no gig.”
Is it the same for experts?
Experts and Lawyers - RJMorris 26
For an expert, is it true that“Any gig is better than no gig”?
March 9, 2011
1 2 3 4 5 6 7
0
2
3
2
4
8
1
1. Always
2. Usually
3. Sometimes
4. ON THE FENCE
5. Sometimes NOT
6. Rarely
7. Never
March 9, 2011 Experts and Lawyers - RJMorris 27
Any Gig…
• Maybe you’ll learn to love each other• You keep an open mind• You can work with all kinds
OR• It’s NOT as easy to love a poor person as a rich
person (poor/rich in a monetary or non-monetary sense)
• You trust your instincts / first impressions• Once bitten / Been there, won’t do that again
March 9, 2011 Experts and Lawyers - RJMorris 28
Courtship – The Lawyer’s Side
• Limited Pool of Genuine Talent• Conflicts
– Financial: Sponsored research (esp. medicine)
– Human: it’s a small world and everyone knows everyone
• Outsider or Insider?• Expert witness version of “Dance 10, Looks 2”
March 9, 2011 Experts and Lawyers - RJMorris 29
Experts and Lawyers -Litigation-Specific Problems
• The Moving Target Problem
• Independence (credibility) v.
hired gun (perceived/actual bias)
March 9, 2011 Experts and Lawyers - RJMorris 30
Experts, and the Lawyers Who Love Them
• What Lawyers Like about Experts1. Smart! Interesting! Witty!
2. Infectious Love of their Job (Great Teachers!)
3. Intellectually Curious (Great Students!)
March 9, 2011 Experts and Lawyers - RJMorris 31
Experts, and the Lawyers Who Hate Them
• What Lawyers Don’t Like about Experts1. Yes-persons
2. “Toxic Egos”
3. Bad at Cross (see 1 and 2)
4. See Marital Problems
March 9, 2011 Experts and Lawyers - RJMorris 32
Experts, and the Lawyers They Love
• What Experts Like about Lawyers– Smart! Interesting! Witty! – Infectious Love of their Job (Great
Teachers!)– Intellectually Curious (Great Students!)
March 9, 2011 Experts and Lawyers - RJMorris 33
Experts, and the Lawyers They Hate
• What Experts Don’t Like about Lawyers–“Toxic Egos”– See Marital Problems
March 9, 2011 Experts and Lawyers - RJMorris 34
Summary• We (experts; lawyers) think we are really
– smart, – conscientious,– thoughtful, – competent ,– decent, and – honest .
• We like it when they (lawyers; experts) are, too.
• We don’t like it when they (lawyers; experts) are not.
March 9, 2011 Experts and Lawyers - RJMorris 35
Advice?• Be
– smart, – conscientious,– thoughtful, – competent ,– decent, and – honest .
• Make sure counsel is, too.
Free advice, and worth every penny.
March 9, 2011 Experts and Lawyers - RJMorris 36
THANK YOU• Any questions?• Any question slide I should try to insert on
the fly? (I can try – or you can!)
Afterthoughts?
Please write to [email protected]