We asked Personal Injury Attorneys Marty Rutberg & Steven H. Cohen, of the Poughkeepsie, NY law firm Rutberg Breslow, to answer some questions on working with expert witnesses. Here are their responses.
1. What has an expert done that made a positive difference in a case?
Mr. Rutberg: Perhaps the most effective aspect of good expert testimony is explaining complex subject matter in plain language.
Mr. Cohen: Expert testimony is needed when the issue is beyond the normal life experiences or ken of the average juror. An expert can give an opinion that a particular condition or product is unsafe and violates certain recognized standards or laws. In a recent case we had against a municipality, our parks expert opined that an object placed in a parking lot by a city employee to control traffic was dangerous and violated good and safe parks practices. The expert’s clear explanation of why and what safer alternatives were available made a positive difference in that case.
2. What has an expert done that hurt their side?
Mr. Rutberg: Jargon kills
Mr. Cohen: Usually a defense expert will ignore an important fact or facts when arriving at an opinion that is helpful to the defense. In a case we had against a waterpark the defense expert ignored the fact that the park knew the ride was unsafe and opened the ride before receiving the correct and safe riding tubes. Once I asked him to assume these facts as true, he was forced to admit that his earlier opinion that the ride was safe was wrong and he then opined, given all the facts, the ride was unsafe.
3. What advice can you give experts to best handle cross-examination?
Mr. Rutberg: Never be led down the garden path of incremental concessions through yes/no questions, HOWEVER do not argue what can not be argued – If what the cross examiner says is true, say it is true and move on. By arguing about something obvious you make the case about you instead of about the facts. For example, the answer to “You never examined the plaintiff yourself, did you ?” is “No” not “Examination was not necessary”. The latter is information to be transmitted on direct or on redirect.
Mr. Cohen: Be honest, forthright and agree with those questions being asked on cross that must be agreed with. To do otherwise makes the expert appear less credible. Don’t fight with the other lawyer. We will have a chance on re-direct to address anything that needs to be addressed.
4. How should an expert answer the question about being paid to provide an opinion?
Mr. Rutberg: When asked “Do you have an opinion which you can state with a reasonable degree of XXXX certainty as to whether _____________?” the correct answer is “I do have such an opinion”. The next proper question and answer is “What is Your opinion ?” and a one sentence statement, i.e. “the accident was caused by excessive speed” The next question is “Please explain your opinion” and the answer is the expert’s extended statement of his finding and opinion. This is the one and only correct and effective way to present opinions to the jury.
Mr. Cohen: Answer it honestly. Jurors expect experts to be paid for their time and expertise. This is something we usually cover during jury selection so there is no “aha” moment when the expert is asked about it on cross. You can also cover it yourself with your expert on direct exam and address the issue that way.
5. How should an expert handle evidence that is hurtful to the case?
Mr. Rutberg: Never overstate the case. Never say anything you can not repeat under oath or which you would not teach to students of your profession
Mr. Cohen: Never deny that such evidence exists unless its existence is truly disputable Explain why that evidence is not controlling under the circumstances of this case.
6. What is most important for an expert: qualifications, preparedness, or communication skills?
Mr. Rutberg: If I have to pick one, it is preparedness, (which expressly includes taking direction from the attorney)
Mr. Cohen: All are important. If I had to choose one I would say communication skills. An expert who teaches the jury about an issue without talking down to them will be well received and if he is not as credentialed as the expert from the other side, that may be forgiven. We have used local mechanics and driver’s education teachers in some cases who were not recognized experts but who had great rapport with the jury.
7. Is it necessary for an expert to understand the legal procedures of a case?
Mr. Rutberg: Generally, no. But they must understand the standards for admission of their testimony/opinions.
Mr. Cohen: To some degree, yes. They need to know what the ultimate legal issues are and how to explain their opinions and the basis for them in an acceptable fashion. Obviously, they should be made aware of the defenses being raised and what to expect on cross exam (leading questions).
8. What should an expert be sure to do, or avoid, when writing a report?
Mr. Rutberg: Never overstate the case. Never say anything you can not repeat under oath or which you would not teach to students of your profession
Mr. Cohen: Again, honesty is key and it’s important that the expert address anything that’s potentially negative to the case. Doing so head on will help with the expert’s credibility. The lawyer must make sure the expert has all relevant information including all medical records, incident reports and depositions of everyone involved. There is always the danger that if these are not provided to the expert before his/her report is written, that the expert will be confronted with something potentially harmful for the first time on cross-exam (perhaps the EMS worker wrote down a statement attributable to the plaintiff that is different from the version in an incident report). Had the expert had these earlier and spoken to the plaintiff about them, the two versions could have been sorted out and explained in the report. (perhaps the plaintiff was heavily medicated with narcotics when the incident report was made..)
9. What makes an expert credible?
Mr. Rutberg: Non-litigation experience in the field of inquiry. Not overstating the case. Not arguing stupid points
Mr. Cohen: His/her qualifications and basis for opinions are important but the ability to teach and not talk down to the jury is paramount. The fact that an expert testifies fairly equally for both sides is helpful for credibility purposes. The fact that the witness may have never testified as an expert before, but has the requisite qualifications is also positive. The ability to explain things in plain English and to handle any potentially negative issues also makes the expert more credible.
10. What advice would you give an expert who wants to increase their chances of being retained in more cases?
Mr. Rutberg: 1) Internet presence and TASA or similar are both essential. 2) Don’t assume your professional knowledge makes you a good speaker. Learn to present well. Ask the lawyer for guidance.3) Don’t ever think you know better how to present the case than the lawyer. 4) Develop good relationships with the lawyers who hire you – they will refer you to others. 5) Following #2 and 3 will lead to winning efforts. Then with #4 you should ask that counsel report case to NY VERDICT SEARCH because we also find experts that way.
Mr. Cohen: An expert who delivers reports on time, shows up for prep and court on time, does not overcharge, engages the jury and has a solid basis for his/her opinions will be retained again and again. Those factors are more important than if the case is won or lost.