[CLC-Discussion] Informal poll on expert witnesses

Wed Sep 11 08:02:22 PDT 2019

Before I respond to the question, please excuse a brief diatribe. Even worse
(at least from my perspective) is the situation in arbitrations. I am
privileged to serve as a AAA construction and commercial arbitrator, and
experts are common. To recite what we all know, experts aren't fact
witnesses. They are testifying about their opinions, which can even be based
on hearsay which would be in itself inadmissible so long as it is the type
of thing on which experts rely. The touchstone for all of this is whether it
will assist the trier of fact. You would be disturbed at how often "expert"
testimony is so ridiculously overstated the arbitrators wind up almost
insulted that anyone thinks they might believe that nonsense. Don't
misunderstand. I've been in some cases where the experts were great teachers
about the Florida Building Codes, or construction related issues, or other
technical issues, and the experts were truly helpful. Unfortunately, I've
been in others where the testimony is so obviously biased it is simply a
waste of everyone's time.

End of monologue. To respond to your question, I like the idea. I have one
reservation. Because judge's are supposed to be neutral, letting them pick a
name unilaterally might be viewed as favoring one side or the other (however
inadvertent ). We arbitrators are always painfully aware that one of the few
grounds under either the Federal Arbitration Act or the Revised Florida
Arbitration Code for vacating an arbitral award is bias. What about a tweak.
Have the parties agree on the name, or if they can't, they agree on three
names and the trier of fact picks one. If they don't even do that, then the
court issues an order describing the expert needed and some third person
(the Clerk of the Court?) appoints the expert.

How does one go about such a rule change?

Langfred W. White, Esq.

Board Certified in Construction Law

Fellow of the Construction Lawyers

Society of America

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From: clc-discussion-bounces at lists.flabarrpptl.org
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Timothy
R. Moorhead
Sent: Tuesday, September 10, 2019 9:16 PM
To: clc-discussion at lists.flabarrpptl.org
Subject: [CLC-Discussion] Informal poll on expert witnesses

Question for the group.  Please respond only to me to avoid clogging
everyone's email as I have just done.

The last time I tried a jury trial with expert witnesses, the jurors
universally commented that they simply ignored the expert witnesses of both
sides.  The comment was that they figured that any lawyer could find an
expert to say whatever they wanted.  Unfortunately, there is probably a lot
of truth to that comment.  In the olden days when we took notes on stone
tablets, we law students were taught that experts testify as a "friend of
the court" the idea was that the Court would be in need of some expert
guidance.

So, would there be any support for a rule change that would ban party
sponsored experts from testifying?

Instead, a party would petition the Court to appoint an expert who would
then be paid through the Court equally by all parties.  The expert would
then be testifying as a truly neutral witness.  The experts would go through
a vetting process to become certified as an expert in any particular field
and much like a list of mediators, a list would be available to the Courts.
The parties either agree on an expert who is then approached by the Court,
or the Court selects its own expert.  

This makes the expert testimony much more reliable and the qualification of
the expert has been handled ahead of time.  No more Daubert challenges, the
Court has predetermined who is and who is not a reliable expert.  The Court
decides whether to allow the expert to present his testimony or simple
advise the Court with regard to any questions the Court may have.

The Parties would be free to engage their own consulting experts to assist
with questioning, etc., but no testimony from them.

Thanks for reading.  What do you think?  

 <http://www.wfmblaw.com/> Wright, Fulford, Moorhead & Brown, P.A.

Timothy R. Moorhead, Esq. 

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