[CLC-Discussion] Informal poll on expert witnesses

[Hans Peter Haahr]

We all know how neutral the “Neutral Evaluation” program is under 627. I think it’s a noble idea but impossible in practical terms

Sent from my iPhone

On Sep 11, 2019, at 6:31 PM, Fred Barnes <fred at fcbarneslaw.com<mailto:fred at fcbarneslaw.com>> wrote:

Thinking further about the idea, if there is only one expert, and if the expert’s opinions turn out to be in line with one party’s position, how could the other party stand a chance in court?  The expert’s opinions would essentially be dispositive of the case?

Frederick C. Barnes, Esq.
Board Certified Construction Lawyer
500 N. Maitland Ave., Suite 305
Maitland, FL 32751
(407) 865-9200
www.fcbarneslaw.com<http://www.fcbarneslaw.com/>
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From: Fred Barnes [mailto:fred at fcbarneslaw.com]
Sent: Wednesday, September 11, 2019 6:16 PM
To: 'lan at lwwhiteattorney.com<mailto:lan at lwwhiteattorney.com>'; 'Timothy R. Moorhead'
Cc: 'clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>'
Subject: RE: [CLC-Discussion] Informal poll on expert witnesses

I also like the idea.  It could be a positive and transformative change.  I concur that  a lot of details would have to be ironed out, not only as to selection of the expert but also, for example, how to determine in advance exactly what facts the expert will be given and exactly what issues on which the expert will be tasked to give opinions.

Is the idea to limit it to construction litigation?  How would that be done?  Are we talking about statutory or procedural rules changes?  Or the creation of a protocol that parties in a constructing dispute could agree to early on in a litigation?

Frederick C. Barnes, Esq.
Board Certified Construction Lawyer
500 N. Maitland Ave., Suite 305
Maitland, FL 32751
(407) 865-9200
www.fcbarneslaw.com<http://www.fcbarneslaw.com/>
<image001.png>

From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of lan at lwwhiteattorney.com<mailto:lan at lwwhiteattorney.com>
Sent: Wednesday, September 11, 2019 11:02 AM
To: 'Timothy R. Moorhead'
Cc: clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] Informal poll on expert witnesses

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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Law Offices of Langfred W. White, PA
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email: lan at lwwhiteattorney.com<mailto:lan at lwwhiteattorney.com>

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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto: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<mailto: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?




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

Timothy R. Moorhead, Esq.

Board Certified in Construction Law

505 Maitland Ave. Suite 1000 | Altamonte Springs, FL 32701

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