[CLC-Discussion] Informal poll on expert witnesses

[Tony Lehman]

I can understand the idea that juries may ignore expert opinions based on the fact that parties pay the experts. That's a pretty high level of cynicism, of course, but understandable. Did you ask the jurors what they would have thought of the case if only one side has an expert, though?

If the court appoints the expert, the expert essentially becomes a testifying special master. That expert's opinion will carry such great weight that it will be nearly impossible for the party whose position ends up discarded by the court-appointed expert to overcome.

And, I know you say that is sort of the point. But, what if the court-appointed expert is dead wrong about their opinion or makes a mistake and fails to consider certain information that is critical to proper understanding. How, then, does the other side get over the threshold of the imprimatur of "court-appointed" and "neutral" if you cannot offer your own expert to point out the deep flaws in methodology?

What happens if the factfinder decides the expert is completely untrustworthy for that particular case? Assume that through brilliant cross-examination you have successfully undermined the testimony of the court's expert. Where does that leave the case? You still have issues that require expert testimony to decide, yet you now have a factfinder left to its own devices in figuring out what the right answer is. Do you want a jury of twelve people who are not experts just throwing darts to figure out the right answer?

How do you define the scope of the court-appointed expert's area of expertise? If you have multiple issues for different expertise in a case, do you have three or four or five court appointed experts - one for E&O, one for delays, one for what the contractor should have done in the situation, one for what the owner should have done in the situation, etc.?

I think your idea is a good one theoretically speaking. In practice, however, I do not think it would work and would strongly oppose it.

Anthony D. Lehman
Partner
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From: clc-discussion-bounces at lists.flabarrpptl.org <clc-discussion-bounces at lists.flabarrpptl.org> On Behalf Of Timothy R. Moorhead
Sent: Wednesday, September 11, 2019 11:00 PM
To: Fred Barnes <fred at fcbarneslaw.com>; lan at lwwhiteattorney.com
Cc: clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Informal poll on expert witnesses

Fred,

That is sort of the point.

Experts are the only people whose opinions (rather than factual observations) are allowed.  See objections relating to hearsay and speculation.  However, the idea of parties sponsoring their "expert's" testimony has led to the fact finder distrusting or ignoring those opinions.  They are no longer testifying as "friends of the Court". They are testifying as "friend of the guy paying me".

So, what I am advocating is finding a process to get back to making expert testimony more trustworthy by the Courts and juries.  To do so I think we need a system in place to have the experts prove up their qualifications and be accepted by the Courts and Counsel.  Once "State Certified" if you will, the Court knows they can trust the guidance they give to the Court.  The parties can suggest a panel from which the Court chooses and an expert would only be engaged upon the Court's motion or upon the motion of  a party and a showing of cause for their engagement.

We pay them from the Court rather than hiring them through counsel.  The parties still bear the cost, but less directly.







[Wright, Fulford, Moorhead & Brown, P.A.]<http://www.wfmblaw.com/>
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From: Fred Barnes <fred at fcbarneslaw.com<mailto:fred at fcbarneslaw.com>>
Sent: Wednesday, September 11, 2019 6:27 PM
To: lan at lwwhiteattorney.com<mailto:lan at lwwhiteattorney.com>; Timothy R. Moorhead <tmoorhead at wfmblaw.com<mailto:tmoorhead at wfmblaw.com>>
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Subject: RE: [CLC-Discussion] Informal poll on expert witnesses

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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
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Maitland, FL 32751
(407) 865-9200
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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'; 'Timothy R. Moorhead'
Cc: '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
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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 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
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Society of America

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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
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