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In Five Imperatives for Expert Witnesses, SynchronicsGroup Trial Consultants, one of the oldest jury and trial consulting firms in the country, writes on “Are good experts born, or can they be trained?

The nonverbal language is powerful; more powerful than the verbal because it is the primal language of feelings. Most of the attributes of a good expert witness are nonverbal attributes, i.e., self-confidence, politeness, sincerity, preparedness, awareness, relaxed excellence. These are nonverbal attributes because they are based on other people’s perceptions of a person, rather than what the person says about himself. For instance, an expert can declare to the jury that he is credible, but that declaration does not make him credible. The jurors make an expert credible; their perceptions determine who is or is not credible.

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In How the Daubert-Kumho rulings Effects Medical Expert Witnesses, internal medicine expert witness Dr. Perry Hookman writes:

Daubert teaches that one should not just rely on the credentials of the medical expert. The medical expert in Federal court, and increasingly in the State courts, must be more than credible, as evidenced by Board Certification. Testimony must continue to be based on medical knowledge within the physician’s expertise. But whenever possible, the medical expert must currently also support all methodology and opinions with objective documentation and “reliable methodology”. The important questions now are: Has the expert’s theory or technique in question been tested? Has it been subjected to peer review and publication? What is its error rate? Do standards exist? Is there widespread acceptance in the medical community? In summary with what learned treatises from peer reviewed medical publications can the medical expert document and thus support his opinions or theories? The Daubert test applies to all scientific evidence. (509 U.S. at 593,n.11) The Daubert-Joiner-Kumho trilogy has in practice raised the bar for admissibility of expert testimony in every category. Additionally it is difficult if not impossible, for even an experienced medical clinician or practitioner to offer an expert opinion based on technical or specialized knowledge obtained through experience or education alone.

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In Five Imperatives for Expert Witnesses, SynchronicsGroup Trial Consultants, one of the oldest jury and trial consulting firms in the country, writes on “Are good experts born, or can they be trained?

Good experts are good performers, without being theatrical. They keep an eagle’s eye on their jurors – checking out the level of interest, noting which juror is asleep, which is bored. The worst time for experts to testify is after lunch, between the hours of 1:30 and 3:00. So during that time, they have to be especially innovative – talk louder, show an interesting prop or exhibit or get out of the witness chair and address the jurors directly (with the judge’s permission, of course.) All the while, these tasks must be carried out maintaining a demeanor of “relaxed excellence,” an attitude which communicates control, leadership and power.

So, is it possible to learn the skills involved in communicating these subtle nuances? Or do you have to be born with a special sensitivity and natural talent? As complicated a job as it is, being a good expert witness can be learned. And most of the learning has to do with making the nonverbal language – which is spoken on an unconscious level – conscious. By bringing the silent, subtle messages that are communicated nonverbally to light, and examining them through the lens of reason, one can gain control over that language and begin to use it in an intelligent, purposeful way.

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Gastroenterology expert witness Dr. Perry Hookman has authored/coauthored over 40 publications in peer-reviewed medical literature. In Medical Malpractice Expert Witnessing : Introductory Guide For Physicians and Medical Professionals, Dr. Hookman writes that medical expert witnesses should adhere to these seven points:

1. Testify for both the plaintiff and the defense in different cases 2. Assess the merits of the case separately from agreeing to testify 3. Insist on reviewing all the records thoroughly 4. Develop a solid medical posture for each case 5. Review the case in a balanced, critical manner 6. Articulate carefully the standard of care in your own words before expressing it in deposition or at trial 7. Stay within the role and duty as “expert witness” and not as an advocate for either side.

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An anonymous developer is trying to bring a negotiated end to the legal dispute that erupted when Belleair, Florida granted code variances to Legg Mason real estate investors for a Biltmore project. The court is looking at whether unfair consideration was given to the developer during the quasi judicial hearing, namely that town officials were predisposed to favor the request and did not allow the complainants equal time to present their objections. During hearings, Mayor Gary Katica said, “I know the issue was about the parking spaces and when their (referring to the complainants) architecture expert witness was asked if he had ever done a parking study, his answer was no.”

Town officials aren’t saying much other than that the town had been approached by someone seeking to resolve the dispute and they were asked not to reveal the identity of the man. The anonymous man is a developer who builds condominiums, lives in Belleair, and is determined to resolve issues that potentially threaten progress on the Belleview Biltmore restoration.

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In Handling Expert Witnesses in California Courts, Robert Aitken writes that step one is to “analyze evidentiary issues to determine whether you need a consultant, an expert, or both.” A consultant is an expert who does not testify in court and is not subject to discovery. For example, the advantage of using a software consultant as opposed to a software expert witness is that their opinions and reports regarding software functionality and software implementations would qualify as attorney work product and are protected from disclosure according to the California Code of Civil Procedure.

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In It’s Just Cough Medicine” – Think Again!, addiction medicine expert witness Shannon C. Miller, M.D., FASAM, FAPA, CMRO, describes the abuse of OTC cough suppressants.

Dextromethorphan or DXM is a semisynthetic narcotic related to opium and found in many over-the-counter cough suppressants in the United States and most countries. DXM is contained in any drug whose name includes “DM” or “Tuss.” The drug comes in various forms. Most common are cough suppressants in caplet or liquid form, including Corcidin, Robitussin, Vicks Formula 44, Drixoral, and several generic brands. (A caution: Not all medicines under these brands contain the drug since most brands put out several formulations. Look on the label for “DM,” “Tuss,” or “Maximum Strength.”)…

DXM is related to opiates in its make-up, and it produces mind-altering highs. Misuse of the drug creates both depressant and mild hallucinogenic effects. It also acts as a dissociative anesthetic, similar to PCP and ketamine.

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In Cross-Examination of Experts On “Underlying Facts or Data,” Carl Robin Teague writes that cases involving complex questions of medical causation often turn on the “battle of the experts.”

Whether the testifying expert witness is a “primary” expert (i.e. published or participated in the study upon which his opinions are rely) or a “secondary” expert (i.e. is relying on a published paper describing a study in which he played no role), requests to produce the raw data underlying published scientific studies typically are countered with several arguments:

1) The published scientific study alone is sufficient, because it has been peer-reviewed.

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In Anatomy of a Witness List, Hon. Michael L. Stern writes that “each witness should tell the next part of your story and move your case forward… By the time any expert takes the stand, the foundational facts for his or her opinion should have been presented through other witnesses.”

If the testimony of the prior witnesses shifts and adds to the assumptions on which the expert has based a pretrial opinion, an expert can make adjustments (presuming that these remain consistent with the expert’s ultimate conclusions). A late appearance in the trial also allows the expert to summarize and re-emphasize the favorable information supporting the case.

From Advocate Magazine, June 2008.

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In Cross-Examination of Experts On “Underlying Facts or Data,” Carl Robin Teague writes that products liability cases involving complex questions of medical causation often turn on the “battle of the experts.”

As this battle takes on heightened importance, more and more litigants – citing Daubert’s focus on the expert’s methodology and procedural rules requiring disclosure of the expert’s reliance materials – have successfully sought to review the raw data underlying the opinions proffered by opposing experts. In some cases, the testifying expert relies upon his own published studies and actually possesses the data underlying them. More often, the expert relies upon scientific studies published by others. In these latter cases, the testifying experts likely have no access to the data; the courts must arbiter subpoenas duces tecum and motions to quash involving the production of sensitive data from scientists who have nothing to do with the case.

From Expert Alert, ABA, Summer 2008