Crashproof testimony in auto cases.

I know of no teacher so powerful and persuasive as the little army of specialists. They carry no banners, they beat no drums; but where they are, men learn that bustle and push are not the equals of quiet genius and serene mastery.

--Oliver Wendell Holmes, Jr.(1)

Do not be bullied out of your common sense by the specialist; two to one, he is a pedant. . . .

--Oliver Wendell Holmes, Sr.(2)

Having read these contradictory lines of Holmes, Jr., and Holmes, Sr., I can imagine the heated conversations around the supper table as Mrs. Holmes tried to keep the peace while the elder and junior Olivers debated whether experts are quiet geniuses of screne mastery or myopic, self-important pedants.(3) Since I would not second-guess either Holmes, I have to conclude both are right: Expert witnesses can rise above the "bustle and push" of a trial and leave the jury appreciative of their assistance, or they can leave the jury cold.

As tort cases have grown ever more complex, the use of experts has grown commensurately. Experts are able to present complex information in terms jurors can understand. However, ensuring that experts add persuasive authonrity to the plantiffs case, rather than just adding costs or (worse yet) boring or alienating the jury, is one of the trial attorney's most difficult tasks. As with other complex tort litigation, automotive-safety cases present both the need for expert testimony and the dangers that accompany that need.

Do I Need an Expert?

As lawyers, we easily can get caught in the trap of believing we need expert testimony on every issue. At trial, academicians give lengthy testimony that fills out the record but docs not persuade. This does little to advance the client's cause and can have disastrous financial consequences.

The "less is more" rule usually works when assembling the team of experts. In crashworthiness cases, success hinges on whether the jury believes that the manufacturer used common sense in designing the vehicle. A parade of highly credentialed experts who conclude the design was faulty is not as persuasive as a few carefully selected and presented experts who provide enough information to allow jurors to come to this conclusion by themselves.

I try to cover as many issues as I can with lay witnesses. Beside the obvious benefits for the budget, lay witnesses can be more persuasive. They often appear more sincere. The jury may simply relate to them better. For example, the ambulance driver's description of the road conditions as "treacherous" is a persuasive rebuttal to the windbag defense expert who lectures on friction coefficients and steering-response time.

Identifying and Selecting the Expert

Strong credentials and knowledge of the subject area are obvious prerequisites in expert witness selection. However, although technical proficiency alone may make 6ne an expert, it does not make one an expert witness. Other selection criteria are the same as those we use in assessing all witnesses.

I have never hired an expert before having a face-to-face meeting. I need to be able to assess my expert up-front and personal.

* Does she communicate effectively, and stick to the point?

* Does he make complex points simple, points simple points complex?

* Is she genuine, trustworthy, and more interested in telling the story than in scoring points?

* Is he more concerned with his retainer agreement than the accident scene photos?

If these and other questions cannot be answered favorably in 45 minutes, I close my briefcast and go home.

The best gauge of witness skills is test by fire. It is often better--to go with an expert who has been battle-proven in trial. One terrific source of information on effective experts is the network of attorneys who are working on similar cases. These attorneys can identify effective experts and give insights into their strengths and weaknesses. The Exchange, ATLA's computerized research service,(4) and the Attorneys Information Exchange Group(5) can provide this helpful information.

Another source of experts is a technical library at a university engineering or medical school. An author of leading scholarly articles on the technology in question may welcome the opportunity to testify. Although there are dangers in using an academician who is not trial-tested, there is a refreshing honesty about a researcher who has devoted his life to understanding a subject simply for knowledge's sake and who is not a professional witness.

Former employees of the automaker or members of relevant trade or industry associations with inside knowledge may be good witnesses. For example, someone who prepared a memo identifying a safety problem before the car went into production is like an "eyewitness to the crime." Not only can this expert supply technical assistance to the jury, but, more important, he can supply the scienter element needed to prove negligence or support a punitive damages claim.

One ethical caution: While interviewing former employees, plaintiff's counsel must protect against disclosure of the defendant's privileged information. This is usually not a problem with design engineers who are likely to have a wealth of knowledge regarding the product's design history but are not privy to privileged communications.

The next step in selecting the expert is troubleshooting. Every effort should be made to identify problem areas. Find the "skeletons" such as former testimony at odds with the testimony needed in your case, aggressive promotion of expert witness services, or prior publications that could adversely affect your case.

Blunt questioning of the expert at the initial meeting is mandatory. Press experts to identify problems like limitations in educational background, blemishes on work records, or dishonest acts. These will be brought out by the defense at deposition or trial in any event, and the expert might as well have your assistance in working out the problem up front.

The Budget

Probably the most overlooked aspect of relationships with experts is costcontainment. In a crashworthiness case, or any major product defect case, the cost of experts can easily outstrip all other costs combined. Each case should have a budget commensurate with reasonable recovery potential. Ballooning expert costs as the case proceeds toward trial are frequent budget-busters. The following lists of do's and don'ts, developed after years of violating these rules and suffering the consequences, can help keep costs in line.

* Do use experts to screen out nonmeritorious cases. I have been fortunate to have had the advice of two valued engineering experts for more than a decade of preparing and trying automotive products liability cases. These experts have been brutally honest in screening cases. A preliminary auto-accident reconstruction, an evaluation of possible injury-causing defects, and an estimate of costs necessary to develop needed proof are critical before agreeing to take a case.

* Do establish firm ground rules for each expert. Explicitly limit the expert's role to avoid being billed for unneeded testing not approved in advance. * Do sequence the hiring of experts. There is no need to hire an economist or vocational rehabilitation counselor early on. Someone in your office can document damages and provide this information to experts later. Hire the damages expert at the last possible moment. After all, you. often can settle the strong hability case before detailed damages need to be worked up.

* Don't provide each expert with every imaginable piece of paper. For example, have your paralegal provide summaries of only those depositions that are important to each expert's opinions. Discuss the selection of these summaries with your expert and, where needed, provide the expert with the actual deposition testimony.

I go through the evidence files with each expert and have him tell me what he needs. If, during the deposition, the expert acknowledges that he has not been provided specific deposition testimony, he can agree to keep an open mind and consider any later-supplied information. He can also explain that the widow sitting at counsel table cannot afford to pay an expert $200 an hour to review every piece of paper, important or not.

* Don't use the expert as a "gofer." You can do the bulk of technical research, digestion of discovery documents, and preparation for depositions in-house. Tell experts to advise you of their information needs, so your office can follow up on them.

* Don't use expensive "ivory tower" experts to educate you on background technical issues. Instead, consider using a technician or mechanic. For more advanced technical issues, use a student at the local engineering or medical school. After all, why pay $200 an hour for a basic education on the technology that you can get for $20 an hour?

* Don't hire out-of-town experts when you have an equally capable local expert. Travel costs add significantly to the expert's bill. A local authority may establish points more credibly and economically than an import.

* Don't hire two or more experts on the same issue. This is expensive and invariably results is testimony that is contradictory.

* Don't hire an expert to screen obviously non-meritorious cases. If the car did not begin to roll until the unbelted drunk driver swerved into a ditch while speeding, you do not need to consult an expert analysis of roof crush to reject the case.

Deposition and Trial Preparation

Budget considerations aside, experts must thoroughly understand the theories of liability and anticipated defenses. Even while emphasizing to experts the limits of their role, educate them on the big picture. Otherwise, they can be led too easily into making statements they believe are innocuous but that can sink the case.

I often schedule a meeting with all the liability experts before they have fully developed their opinions. The defense will try to characterize this exercise as an effort to "cook" the testimony. If handled properly, however, these meetings can actually enhance each expert's credibility. I play a minor, facilitating role.

The purpose of the meeting is not to script and choreograph the presentations. The goal is to allow each expert to present his or her opinions to the group and to have those opinions thoroughly critiqued. Weaknesses and inconsistencies can be identified, misimpressions of the evidence corrected, and thoughts and conclusions congealed. If experts keep open minds, they will become more effective in both their analysis and testimony.

Beware of the possibility that these discussions may be discoverable. Thus, be prepared to have the experts explain forthrightly why alternative theories of design, causation, and damages were rejected. The jury will appreciate the willingness of the plaintiffs experts to keep an open mind. Nonetheless, scrap the meeting if the risks of disclosure outweigh the benefits of a roundtable critique.

A one-on-one meeting with the expert before deposition provides an opportunity for testing opinions through mock cross-examination. Never let an expert express an opinion without a thorough questioning of each assumption. Often an expert will have overlooked the critical testimony of a fact witness or relied on some misunderstanding. Few experiences are more uncomfortable than having your expert destroyed at trial by her incorrect assumptions. Even the experienced witness needs thorough, case-specific preparation for deposition.

You should carefully control correspondence to the expert. Assume that anything provided will be subject to discovery notwithstanding work-product or attorney-client privilege Claims.(6) Letters referencing "important" new information can be devastating if the expert has rejected the information as adding nothing to his conclusions.

If the expert is presenting scientific evidence, pay particular attention to the underlying methodology. In the recent opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc.,(7) the U.S. Supreme Court rejected the view that scientific testimony must be generally accepted within the scientific community before it is admitted, thus liberalizing the standard of admissibility of this type of evidence.(8)

Under Daubert, the expert is given broad leeway to draw independent conclusions so long as the methodology used to reach those conclusions is scientifically valid. One of the few remaining ways defendants may challenge scientific testimony is by questioning the reliability of the underlying methodology. You should anticipate and prepare for defense's probing the scientific expert's methods.

Trial Presentation

Every aspect of the expert's testimony should be geared toward assisting the jurors in their difficult task. Include no throwaway testimony like long, boring recitations of qualifications. The goal is not to get the resume and conclusions in but to help the jury understand and resolve technical questions.

I like to begin by citing only the qualifications that are needed to get the jurors' attention, garner their respect, and focus them on the question at issue. The rest of the experts' qualifications I hold back for use during the substantive testimony.

For instance, after the witness has expressed a belief that the seat-belt design was defective, he can describe his experience designing restraint systems for NASA astronauts. After the investigating police officer testifies that she has never seen a seat-belted driver receive such severe injuries from such a moderate impact, she can add that she has investigated 1,000 accidents.

Hearing the expert say something wrong is the second greatest danger we face; boredom is the first. Get the expert off the witness stand. Have him walk around, handle exhibits, or demonstrate physical actions.

Often experts can effectively "teach" jurors by using a blackboard or chart with markers. By developing visual images to support the explanations as they testify, experts turn their conclusions into a story, avoid boredom, and create a lasting visual impression of their testimony. Drawings, tables, and diagrams that are well thought out in advance but are created during trial can be more effective than a slick, commercially prepared exhibit.

I have found that short video excerpts from defense depositions can be effectively used during experts' direct examination. For example, assume you have taken several depositions of the manufacturer's engineers and management personnel. The depositions show that, contrary to the defendant's position that alternative designs were not practicable, the design engineers had identified the hazard and eliminated it through a safer design. However, that engineering "fix" was rejected by management for financial reasons. Consider the following direct examination:

Q. Dr. Jenkins, I want you to assume that the manufacturer's expert wifl testify that it was not practicable to prevent a properly belted driver from hitting the roof of the car during a rollover. Have you read the depositions of [manufacturer's] in-house engineers as to whether it was possible, from an engineering standpoint, to prevent a belted driver's contact with the roof during a rollover accident?

A. Yes.

Q What did you find?

A. I found that the manufacturer's engineers recognized the risk of roof contact and realized that they needed to redesign the restraint system. They actually designed and built a prototype seat and restraint system that substantially minimized the,danger of hitting the roof during a rollover. [Play the engineer's video deposition excerpts, keeping it to no more than one or two minutes.

Q What became of this "fix"

A. Management rejected it because it added $25 to the cost of the car. [Play excerpts from the management video deposition.

The defense may object to playing deposition excerpts without playing the entire deposition or parts the defendant designates. But I have found judges very open to allowing deposition excerpts to be presented this way. Raise the issue with the court in advance. Explain that this kind of presentation is important to understanding the expert's conclusions. Suggest that the defense may play the rest of the deposition video in its case.

Finally, keep the direct examination short, nonrepetitive, and to the point. Elicit conclusions and some, but not all, details supporting those views. Allow the expert to explain her views and outline supporting information in a tight, cohesive, and compelling narrative. Finish the session by asking her to restate her conclusions.

During cross-examination, your expert, will undoubtedly be offered the opportunity to fill in details that further support her opinions. Not only does this approach prevent direct examination from becoming a boring laundry list of data, it also turns cross-examination into an opportunity to bolster the expert's conclusions.

After the Verdict

Win or lose, talk to the jurors about your expert witnesses. Who was effective? Boring? Condescending? Did they find your experts' reasoning flawed or insufficiently explained? Why did they choose to believe, or disbelieve, your expert when he was contradicted by your opponent's expert? What were the factors that led them to trust one expert and distrust another? We can learn more from interviewing jurors than from any other source about how to better use experts to assist the jury the next time around.

Approach expert testimony with the optimism of Holmes, Jr., tempered by the seasoned skepticism of Holmes, Sr. Sift through the field of experts for the one who speaks to your issues with authority and grace. The jury will appreciate that expert's help in assimilating difficult technical information and reaching reasoned, informed conclusions.

Notes

(1) Oration before the Harvard Law School Association (Nov. 5, 1886), in THE ESSENTIAL HOLMES 225 (Richard A. Posner ed., 1992). (2) Oliver Wendell Holmes, OVER THE TEACUPS 148-49 (Scholarly Press 1970) (1891). (3) "Pedant" is defined by Webster's Third New International Dictionary as "one who is uninspired, unimaginative, or narrowly academic or who unduly emphasizes minutiae in the presentation or use of knowledge." We all have seen this guy testify. (4) The Exchange, 1050 31st St., N.W., Washington, DC 20007-4499, [phone]. (5) Contact Russ Langley, executive director, Attorneys Information Exchange Group, [phone]. (6) Jurisdictions differ on the extent to which disclosure of work product to an expert results in a waiver of discovery protection. See generally Bryan Lewis, Note, Discovery Under the Federal Rules of Civil Procedure of Attorney Opinion Work Product Provided to an Expert Witness, 53 FORDHAM L. REV. 1159 (1985). (7) 113 S. Ct. 2786, 2793 (1993). (8) See Edward J. Imwinkelried, The Daubert Decision: Frye Is Dead, Long Live the Federal Rules of Evidence, TRIAL, Sept. 1993, at 60.

James L. Gilbert, national chairman and founder of Attorneys Information Exchange Group, practices law in Arvada, Colorado.