[CLC-Discussion] Informal poll on expert witnesses
Mark Young
mark.young at asbuiltlaw.com
Mon Sep 16 16:27:48 PDT 2019
Fred & most esteemed colleagues:
About 40+ years ago the use of expert witnesses in court cases was the
exception not the rule. This was before my time… If there is a perceived
way to increase a party’s chance of prevailing in a case, it is sensible
for a party with the financial means to use that additional tool. Fred
brings up many valid points about the potential persuasiveness of a “hired
gun” with a jury and the value of a truly neutral expert witness. I think
there are ways of accomplishing Fred’s goals without requiring special
certifications or excluding certain expert witnesses.
There are several alternatives:
1. Choose binding arbitration – an expert’s report will be less
persuasive to a knowledgeable expert in the construction field, or
2. File a motion for the court to appoint a neutral witness.
I have been a Construction Panel member for the American Arbitration
Association since 2014. I have a Civil Engineering degree and worked as a
project engineer in the mid 1990’s before going to law school. I
occasionally find errors in experts witness reports. Only about half of
the AAA panel members are attorneys, many are professionals with expertise
in their fields.
If you file a motion to appoint a neutral expert witness, a significant
consideration of the court will be how to pay for the neutral expert
witness. The proposition that the cost be split among the parties seems
reasonable, similar to how a mediator’s fee is split. It may be prudent to
include a few limitations in the motion: 1) a fee cap, 2) limitations on
the expert’s past/current/future business relations with parties/attorneys
in the case, and 3) and the expert cannot be a friend or family of the
judge. *5 CFR § 2635.702** Use of public office for private gain. *
I am against some “qualifications panel” determining who can and can’t be
an expert witness and the scope of subject matter of their expertise. You
risk unnecessarily tying the court’s hands. Not every expert witness
requires a college degree. My law school had a couple of federal judges
and a state supreme court justice as adjunct professors; my law school was
about a 10 minute drive from their respective courthouses. They often used
real life examples in their teaching. One of the examples from a US
District Court judge; he allowed a person who dropped out of high school to
testify as an expert witness. This may seem counter intuitive – how could
a high school dropout be an expert witness???
The person had been a ranch hand working on various ranches for 20+ years
and was testifying as an expert on the proper standard of care on a ranch.
The high school dropout was an expert on the ranch topic. Again, not every
expert witness needs a particular degree, it is whatever will help the
court in understanding the case.
I believe the US legal system is world class, but the even best can always
be improved. Improvements are made by exploring new ideas, such as those
proposed by Fred and others.
Best regards,
*Mark Young, Esq., JD, MBA, BS Civ. Eng.*
Shareholder, AS-BUILT LAW PLLC
Construction Panel Member, American Arbitration Association
Patent Attorney, U.S. Patent & Trademark Office
*Introduction Video:* https://youtu.be/mgszdSuFlKw
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Concentrating in Construction and Business Law
mark.young at asbuiltlaw.com
Main: 561-340-3700
Direct: 561-784-2322
Cell: 561-719-1250
West Palm Beach, Florida
www.asbuiltlaw.com
www.asbuiltmed.com (AS-BUILT Mediation)
*From:* clc-discussion-bounces at lists.flabarrpptl.org <
clc-discussion-bounces at lists.flabarrpptl.org> *On Behalf Of *Tony Lehman
*Sent:* Thursday, September 12, 2019 7:50 AM
*To:* Timothy R. Moorhead <tmoorhead at wfmblaw.com>; 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
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
[image: HudsonParrottWalker, LLC] <https://www.hpwlegal.com/>
Licensed in Georgia, Florida, and Alabama
Florida Bar Board Certified in Construction Law
*HudsonParrottWalker, LLC*
3575 Piedmont Road
Suite 850
Atlanta, GA 30305
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m: 404-579-9795
e: ALehman at HPWlegal.com
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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.
[image: 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
T: (407) 425-0234 <(407)425-0234> | F: (407) 425-0260 <(407)425-0260>
Email <tmoorhead at wfmblaw.com> | Website <http://www.wfmblaw.com> | vCard
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*From:* Fred Barnes <fred at fcbarneslaw.com>
*Sent:* Wednesday, September 11, 2019 6:27 PM
*To:* lan at lwwhiteattorney.com; Timothy R. Moorhead <tmoorhead at wfmblaw.com>
*Cc:* clc-discussion at lists.flabarrpptl.org
*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*
500 N. Maitland Ave., Suite 305
Maitland, FL 32751
(407) 865-9200
www.fcbarneslaw.com
[image: rsz_1fcb_lrg_logo]
*From:* Fred Barnes [mailto:fred at fcbarneslaw.com <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
www.fcbarneslaw.com
[image: rsz_1fcb_lrg_logo]
*From:* clc-discussion-bounces at lists.flabarrpptl.org [
mailto:clc-discussion-bounces at lists.flabarrpptl.org
<clc-discussion-bounces at lists.flabarrpptl.org>] *On Behalf Of *
lan at lwwhiteattorney.com
*Sent:* Wednesday, September 11, 2019 11:02 AM
*To:* 'Timothy R. Moorhead'
*Cc:* 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
*[image: constructionlaw]* *[image: 2019_AAA_logo signature]*
*[image:
CLSA Fellow small]*
Law Offices of Langfred W. White, PA
P. O. Box 8334
Clearwater, FL 33758-8334
Phone: (727) 422-5064
email: lan at lwwhiteattorney.com
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*From:* clc-discussion-bounces at lists.flabarrpptl.org [
mailto:clc-discussion-bounces at lists.flabarrpptl.org
<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?
[image: 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
T: (407) 425-0234 <(407)425-0234> | F: (407) 425-0260 <(407)425-0260>
Email <tmoorhead at wfmblaw.com> | Website <http://www.wfmblaw.com> | vCard
<http://www.wfmblaw.com/vcard/vcard.php?name_first=Timothy%20R.&name_last=Moorhead>
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