THE JOURNAL OF THE LITIGATION SECTION, STATE BAR OF CALIFORNIA

Volume 29 • Number 2 2016

1

THE JOURNAL OF THE L IT IGAT ION SECT ION, STATE BAR OF CAL IFORNIA

Volume 29 • Number 2 • 2016

Inside From the Section Chair By Reuben Ginsburg

2 This is Not a Book Review By Benjamin G. Shatz 3 Editor’s Foreword Baby Steps: On the Path to Full Publication? By Benjamin G. Shatz 4 It’s Time to Replace Summary Depublication by the California Supreme Court with Something Better By J. Anthony Kline and Jerome B. Falk, Jr. 15 Managing Your Litigation Team for the Ultimate Benefit of the Client By Allen L. Lanstra

19 CACIs Compel Litigators to “Do It In Reverse” By Travis Burch

23 Trial Ethics: Witnesses By Wendy Wen Yun Chang

28 Sweet Little Lies By Jacob Glucksman 31 Overview of State Bar Court Procedure By James Ham and Ellen Pansky

36 Thinking Beyond the Assignment: Selection and Management of Expert Witnesses By Philip Simmons

42 Secondments: A View from the Inside-Out By Dorit Glockner Warner

45 We Must Promptly Restore Court Reporters to Trial Courts Throughout California By The Honorable W. Kent Hamlin

36

The Special RelationshipBetween Experts and Counsel

S electing an expert witness requires athorough understanding of the issuesin the case, as well as the type of

experts that may be required to provide clari-ty of the issues for the finder of fact. Some

areas of practice, such as land use and realproperty litigation, often involve addeddimensions of complexity in evaluating and

Thinking Beyond theAssignment:

Selection and Management of Expert Witnesses

By Philip Simmons

If you’re not getting the right answers, you’reprobably not asking the right questions— Edward Hodnett

Philip Simmons

California Litigation Vol. 29 • No. 2 • 2016

37

planning for expert testimony. Litigationvaries widely from case to case, but theattorney’s challenge remains the same:putting together expert testimony to clearlyarticulate the relevant facts and the conclu-sions that should be drawn from the facts.Con siderations that go into properly evaluat-ing the need for expert testimony, includingselecting and managing the experts, can beamong the most critical aspects of successfultrial preparation.The nuanced assessment of litigation

issues provided by experts is something thatis often given short shrift in the early stagesof case evaluation or litigation preparation.There may be straightforward legal issuesidentified in the cases, but the vast numberof unique issues that play into virtually everycase requiring expert testimony calls for asomewhat different and expanded relation-ship between the attorney and the experts.In the world of business, effective manage-

ment of complex subjects generally requiresa team of consultants. In real estate, landuse, and development, for example, the man-agement team requires legal, marketing,finance, environmental, entitlement, archi-tectural, traffic, community relations, politi-cal, geotechnical, civil engineering, sustain-ability, and construction expertise. In allcomplex matters, whether in business, medi-cine, engineering, or virtually any other field,it is advisable to have an executive projectmanager to select and coordinate the activi-ties of each required consultant team mem-ber. To be maximally effective, litigatorsshould ideally act in the capacity of an exec-utive project manager. Unfortunately, fewattorneys are capable of evaluating all thenecessary diverse areas of expertise involvedin complex litigation, or understand which ofthese areas may be relevant to the issues of acase. While specific detailed technical exper-tise is often clearly called for in litigation,there are often relevant factors upon whichthe outcome of the case can turn that maynot be readily apparent.

In complex cases, it can be tremendouslyvaluable to have a generalist expert who isfamiliar with all the disparate aspects of thelitigation. This expert can assist the attorneyas executive manager of the expert witnessteam. Treating litigation like a business pro-ject can help identify and piece together ele-ments of a case that are not immediately evi-dent. Unfortunately, not all cases have suffi-cient damages to justify a comprehensiveexpert team. But when the litigation andclient can support the cost, there is no betterway to help ensure an outcome that reflectsall available avenues of analysis. The follow-ing case study will illustrate how valuableexpanded involvement by an expert can be toa case.

— Thinking Outside the Box—A lawsuit filed in Los Angeles Superior

Court in 2012 involved a contract/fraud claimin a real estate syndication. The plaintiffalleged misrepresentations by the defendant,the investment’s syndicator, in packaging theinvestment in the offering prospectus. All ofthe attorneys and experts resided in LosAngeles, although the syndicated apartmentproperties at issue were located in Sacra -mento. The attorneys on both sides, as wellas the expert retained by plaintiff’s counsel,focused solely on the documentary history ofthe transaction. While the case did notrequire a team of experts, it was importantfor both sides to have an expert with broker-age, investment, and general real estateexpertise. The defendant’s expert witness felt that it

was important to go to Sacramento to viewthe properties and interview the propertymanagers, to become knowledgeable aboutthe specifics of the particular properties andthe Sacramento market. Having broad-basedexpertise in all aspects of real estate invest-ment, the expert understood that firsthandobservation and investigation of real estatetransactions often discloses factors that couldnot be uncovered any other way. To really

38

understand the real property assets involvedin the case, he felt it was important to deeplyunderstand the myriad factors that areinvolved in making wise real estate decisions.Whenever real estate market dynamics areinvolved, it is unlikely that anyone can get acomplete picture without a firsthand experi-ence of the assets.Questioning the value of the trip, the defen-

dant’s attorneys were initially reluctant toincur the travel expense. But the expertexplained the importance of the broadest pos-sible understanding of the issues involved, andhow the defendant’s apparent lack of perform-ing industry-standard due diligence might nothave been the cause of the plaintiff’s losses.The attorneys finally conceded and autho-rized the trip. During the expert’s tour of thearea, including interviews with the propertymanagers and local police, the expert discov-ered something that ultimately won the casefor the defendant. The plaintiff’s case wasbased on the allegation that the defendantshould have known about the declining mar-kets in which the syndicated apartment pro-jects were located. The markets certainly diddecline shortly after the plaintiff subscribed tothe syndication agreement, but as it turnedout the cause could not possibly have beenanticipated by the defendant.The expert discovered through his investi-

gation that the neighborhoods in questionhad seen a remarkable upturn in valuationimmediately before the syndication becausethe police department had assigned a specialgang task force to the area. Consequently,the crime rate dropped precipitously, the areabegan gentrifying, and rents increased.Shortly after the syndication closed, the 2008recession began, causing housing valueseverywhere to decline. To compound thebroad market decline, and what ended upbeing dispositive in the case, the reduced taxrevenues from the recession caused thepolice to make budget cuts. These budgetcuts, in turn, led them to disband the taskforce that regularly patrolled the area. As a

consequence, crime rates increased andhousing values dropped as quickly as theyhad risen. There was no way the defendantcould have predicted this sequence of events.Once this information was disclosed to theplaintiff, the case settled. This case and

many others like it illustrate the value ofmaintaining a creative attitude, being open toexpanding the scope of representation,engaging in constant analysis and always

‘It is always

appropriate for

an expert to

adopt a dispassionate

professional posture,

and it is certainly

acceptable to simply

answer the questions

asked by the expert’s

retaining counsel.’

39

conflicting facts, and experts are frequentlythe best way for attorneys to investigate,identify, interpret, validate, or determine therelevance of various facts. The numerousdimensions of interrelated technical or opera-tional issues involved in complex litigationusually go far beyond the lay understandingof the trier of fact — and often the attorneysas well. According to one commentator,“[t]here is no more certain test for determin-ing when experts may be used than the com-mon sense inquiry whether the untrained lay-man would be qualified to determine intelli-gently and to the best possible degree theparticular issue without enlightenment fromthose having a specialized understanding ofthe subject involved in the dispute.” Liti -gation regularly involves circumstancesbeyond lay experience and knowledge, mak-ing the role of the expert even more vital.While mutually exclusive expert positionsregularly satisfy the court’s test for reliability,the more in-depth the background andresearch underpinning an expert’s opinion,methodology, or competence, the more credi-ble the opinion will be to the trier of fact.All experts should understand the concern

many lawyers have about accepting anexpanded scope of expert review, analysis, ortestimony. Some attorneys do not want torisk further complicating the issues, somefear that the expert may tread into areas thatcould compromise the case, some fear thatdoors may be opened to a line of inquiry thatcould jeopardize their client’s position, andsome just don’t want to incur the extra fees.But diligent and experienced experts have anobligation to at least think outside the boxand raise the possibility of lines of inquiry thatthey feel are warranted. Then they shouldstep back and let the attorney decide whetherit is something worth pursuing. In manycases, expert analysis can alert the attorneyto potential issues that should be addressedor at least considered in structuring the case.It is the expert’s responsibility, at the out-

set, to get to know the character of the attor-

looking for ways to improve the depth, thoroughness and accuracy of the expert’sopinions. It is always appropriate for an expert to

adopt a dispassionate professional posture,and it is certainly acceptable to simplyanswer the questions asked by the expert’sretaining counsel. But there is much morevalue that a well-informed and well-managedexpert can provide. To ensure the best possi-ble outcome, it is essential that attorneysallow experts to maintain a flexible awarenessof all the facts, make a concerted effort todeeply understand the opponent’s point ofview, and offer experience-based assistancein evaluating the issues. This not only adds tothe value of the experts, but also helpsenhance the effectiveness of the attorneys.Thoughtful and engaged expert witnesses

regularly struggle with the desire to offerideas or information beyond the scope of thematters on which they are asked to opine.With specialized experience and unique per-spectives, an expert witness will often bringlevels of understanding of the complex andmultidimensional issues of a case that go wellbeyond that of the attorney. Some lawyerswelcome the broader view the experts canoffer, and some actually craft their casearound expert opinions. But many seek tolimit the expert to answering narrowlydefined questions. The role of an expert wit-ness is to advocate for his or her expert opin-ion, not to advocate for a specific outcome ofthe litigation. Nonetheless, the value ofexperts is enhanced when they can provideinformation that helps support or show theweaknesses in the case.

— The Responsibilities of the Expert—The expert’s raison d’être is to assist the

trier of fact in understanding aspects of theevidence that may require specialized skill orknowledge, and help them grasp variousdimensions of technical elements or stan-dards of practice that might not be readilyapparent. But litigation is generally based on

40

neys (on both sides, if possible), and toassess the extent to which the retainingattorney desires the expert to add expertiseto the case. Not all attorneys are aware ofthis added value that experts can provide,

and not all attorneys are open to it. Butattorneys should realize that experts fre-quently have knowledge and experiencebeyond the scope of their intended testimo-ny, and artificial limits placed on the informa-tion the expert is able to provide can poten-tially compromise the outcome of the case.

— Selecting the Expert—Many cases involve legal issues that are

simple enough so the attorney can directlyand effectively manage the required experts.In those instances, the attorney should con-sider the following factors:• The expert’s training and experience

must reflect an appropriate level of expertisein the subject matter.• The expert should display an ability to

apply constant analysis and flexible aware-ness to the relationship between the techni-cal matters and the legal issues.• The expert must be capable of under-

standing the nuanced communication ofthose providing the facts for the expert toevaluate (whether attorney instructions, con-

41

flicting opinions, investigative reports, orissues raised by other experts on the litiga-tion team).• The expert must be able to communicate

clearly, effectively, and persuasively to out-side parties (e.g., in deposition or trial testi-mony). Communication skills are often diffi-cult for the attorney to evaluate, since com-munication styles vary greatly. The linebetween persuasive communication, compro-mised credibility, and perceived bias can easi-ly be blurred.• The expert should have confidence, per-

sonality and style that elicits trust on the partof the trier of fact.• The expert should demonstrate a cogni-

tive style that does not become flustered, andcan respond quickly to changes in tactics onthe part of retaining or opposing counsel.In addition to selecting the best expert, the

expert’s fees must be consistent with thescope and damages of the case. This can beone of the most difficult issues for the retain-ing counsel to balance. In general, the mosteffective experts will also be the most costly— often more than the client or case can jus-tify. Whether the benefits that a higher-quali-ty expert brings to the case justify the cost isa business decision that the attorney andclient need to make as early in the litigationas possible.In general, when evaluating a potential

expert’s curriculum vitae, it is important forthe attorney to evaluate the expertise soughtbased on the current status of the case.However, the attorney also needs to thinkbeyond the obvious issues of the case todetermine whether the expert will be able torespond and adapt to the myriad changesthat often occur as the case progresses.While a broader base of expertise may notseem necessary in the early stages of litiga-tion, the opposition will undoubtedly seek totake the case beyond the capabilities of thedesignated experts. If the opposition is suc-cessful in doing so, it places strategic, logisti-cal and financial burdens on the retaining

counsel. If last-minute additional expertise isrequired, the retaining counsel will be chal-lenged to bring the new expert up to speed,and possibly will even need to restructure thestrategy of the case. While beginning a casewith a broad-based expert team might initial-ly cost more, it could save money and resultin a better outcome in the long run.Most experienced litigators understand

the value of properly selected and managedexpert witnesses. Unfortunately, many delaybringing the experts on board until later inthe litigation, which may not be ideal formaximizing the value that the experts bringto the case. Expert witnesses technically arenot involved in shaping the strategy of acase, but early knowledge of the expert’sopinions will give the retaining counsel atremendous ad vantage in understanding theissues that will likely be confronted as thecase progresses.The most successful litigators have estab-

lished relationships with experts who areretained early in the case. If there are finan-cial or strategic reasons for holding off retain-ing a testifying expert, the retaining counselcan retain the expert solely as a consultant(or “non-testifying expert”). In the capacityof a consultant, the attorney can gleantremendous value early on. The consultant’sopinions can be shielded from discoveryunder attorney work product, and the scopeof the consultant expert’s work can be limitedto reviewing documents or helping to edu-cate counsel. The consultant expert can alsohelp counsel deal with complex technicalissues or respond to opposing experts. If thecase later calls for the expert to testify, theexpert can switch roles and become a desig-nated expert.

Philip Simmons is a real estate and land useattorney, licensed real estate broker, a realestate development consultant, and an expertwitness with decades of experience in landuse, acquisition, entitlement, development,contracts, syndications, finance, marketingand disposition.