working with experts

NEWBIE LITIGATION SCHOOL, PART 1Working With Experts

Premier date: December 7, 20161

Premier Date: December 7, 2016

WORKING WITH EXPERTS

NEWBIE LITIGATION SCHOOL, PART 1 2016

© 2016 DailyDAC, LLC d/b/a/ Financial Poise™ 2

meet the facultyPANELISTS

Angela Allen Jenner & Block, ChicagoDavid ChristianDavid Christian Attorneys, Kansas CityKevin DuffRachlis Duff Adler, Chicago

MODERATOR

Robert Michaels,

Robinson Curley & Clayton PC, Chicago



Practical and entertaining education for business owners and executives, accredited

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www.financialpoise.comDISCLAIMER: THE MATERIAL IN THIS PRESENTATION IS FOR INFORMATIONAL PURPOSES ONLY. IT SHOULD

NOT BE CONSIDERED LEGAL ADVICE. YOU SHOULD CONSULT WITH AN ATTORNEY TO DETERMINE WHAT MAY BE BEST FOR YOUR INDIVIDUAL NEEDS.

http://www.financialpoise.com/


about this webinarLawyers often cannot win a case without help from experts. But when do they need to get involved? And who should you choose? What disclosures do you need to make to the court and opposing counsel? How do you get your expert qualified to testify at trial? We will discuss these issues and more, to help you get the most out of your experts.

about this series

This series is aimed at attorneys who are just starting to get involved in civil litigation, or who could use a refresher on some litigation fundamentals. The purpose is to introduce different components of litigation in the order they generally occur, beginning with the basic rules of civil procedure and continuing through discovery, dispositive motions, and working with experts. The series is best viewed as a whole, building from one session to the next, and then segueing into a second series in early 2017 covering the next phase of litigation (rules of evidence, trial, appeal, and post-judgment enforcement/collection).


episodes in this series

EPISODE #1 Federal Rules of Civil Procedure Refresher 9/28/16

EPISODE #2 Discovery Practice 10/19/16

EPISODE #3 Dispositive Motions 11/16/16

EPISODE #4 Working With Experts 12/7/16

Dates above are premier dates; all webinars also available on demand


Consulting Experts: hired to help attorneys understand technical, scientific, or other specialized information in case.

Testifying Experts: hired to help trier of fact (usually, the jury) understand technical, scientific, or other specialized information in case.

Most of this presentation will pertain to testifying experts.

Consulting v. Testifying


• Viewed as extension of legal team.

• Their work is generally not discoverable by the opposing party. See Fed. R. Civ. Pro. 26(b)(4)(D).

• A party may be able to obtain discovery from an opposing party’s consulting expert if it can show “exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.” Fed. R. Civ. Pro 26(b)(4)(D)(ii).

E.g., one party hired the only expert on the matter; one expert examined an accident scene that can no longer be examined

Consulting Experts - Overview


• Attorneys have considerable leeway in hiring consulting experts as their work product is generally not seen by anyone else and is not used to influence the trier of fact.

• Attorneys should always consider whether the expert is necessary, as resolving issues in-house is generally more cost-effective for the client.

• Resume and experience are key. Has expert consulted on similar cases? Does he or she have the appropriate training? Referral and matching services are available.

Consulting Experts – How to Choose


• Normally, the presence of a non-attorney waives the attorney-client privilege.

• An exception has been carved out for certain consulting experts.

• Seminal case is United States v. Kovel, 296 F.2d 918 (2d Cir. 1961): presence of accounting expert didn’t effect privilege waiver because expert was “necessary, or at least highly useful, for the effective consultation between the client and the lawyer which the privilege is designed to permit.”

• Kovel has been extended to numerous other professions.

Consulting Experts – Privilege Issues


Key considerations:

• Required disclosure (FRCP 26)

• Qualification under Federal Rule of Evidence 702 and Daubert

• Conflicts of Interest

• Preserving attorney-client privilege

Testifying Experts - Overview


Generally : “[A] party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” FRCP 26(a)(2)(A).

Written Reports: “[If] the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:”

• a complete statement of all opinions the witness will express and the basis and reasons for them;

• the facts or data considered by the witness in forming them;

• any exhibits that will be used to summarize or support them;

• the witness's qualifications, including a list of all publications authored in the previous 10 years;

• a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and

• a statement of the compensation to be paid for the study and testimony in the case. FRCP 26(a)(2)(B)

Testifying Experts – Disclosure


• “Non-retained” experts need not provide written reports. (e.g., a party’s treating physician.)

• Non-retained expert must submit disclosure stating:

(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and(ii) a summary of the facts and opinions to which the witness is expected to testify. FRCP 26(a)(2)(C).

• This rule lessens the burden on non-retained experts while still allowing the opposing party to effectively prepare for trial.

Testifying Experts – Non-Retained


Timing: “A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:”

• at least 90 days before the date set for trial or for the case to be ready for trial; or

• if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party's disclosure. FRCP 26(a)(2)(D)

Testifying Experts – Discovery Timing


• Work product doctrine protects “drafts of any report or disclosure” that are required to be produced by the aforementioned Rules. FRCP 26(b)(4)(B).

• The work product doctrine protects communications between attorneys and experts except those that:

relate to compensation for the expert's study or testimony;

identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or

identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed. FRCP 26(b)(4)(C)

Testifying Experts – Work Product Doctrine


• “A party may depose any person who has been identified as an expert whose opinions may be presented at trial.” FRCP 26(b)(4)(A)

• However, if a report is required, the deposition may not occur until after the report is provided. FRCP 26(b)(4)(A)

Testifying Experts - Depositions


Federal Rule of Evidence 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

• the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

• the testimony is based on sufficient facts or data;

• the testimony is the product of reliable principles and methods; and

• the expert has reliably applied the principles and methods to the facts of the case.

Testifying Experts – Rule 702


• Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) identifies factors for determining whether an expert is qualified under Rule 702:

Whether the theory or technique can be or has been scientifically tested;

Whether the theory or technique has been subject to peer review and publication;

The error rate of a particular technique; and

Acceptance of the theory in the scientific community.

Testifying Experts - Daubert


• Daubert termed district courts “gatekeepers” to ensure that “that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”

• Kumho Tire v. Carmichael, 526 U.S. 137 (1999), clarified that Daubert applies to all testifying experts, not just scientific experts.

• Courts regularly hold “Daubert hearings” before trial to determine whether an expert’s testimony should be excluded.

Testifying Experts – Daubert (cont’d)


• Attorneys must consider potential conflicts of interest before hiring a testifying expert.

Three scenarios for disqualification:

The expert “switched sides”; The expert is affiliated with the opposing party’s expert; and Disqualification is necessary to preserve the “integrity of the

judicial system.”

Testifying Experts – Conflicts of Interest


Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271 (S.D. Ohio 1988) states useful test for disqualification:

• Did the objecting party have an objectively reasonable belief it had a confidential relationship with the expert now working for opponent?

• Did the objecting party disclose confidential information to the expert?

• Did the expert use the confidential information to the objecting party’s disadvantage?

Testifying Experts – Switching Sides


• When opposing experts are affiliated with one another, “[c]ourts examine whether there is evidence that any substantive information about the case has been exchanged between the affiliated experts.” In re Malden Mills Indus., Inc., 275 B.R. 670, 673 (Bankr. D. Mass. 2002).

• “Some courts have framed the test for disqualifying experts as whether disqualification is necessary to preserve the integrity of the judicial system. This approach has been criticized when it is the sole basis for disqualification of an expert as experts and attorneys play different roles in litigation and owe different levels of duty to a client.” Id. at 673-74 (internal citations omitted).

Testifying Experts – Other Disqualification Grounds


• Generally, due to Rule 26 disclosure requirements, sharing confidential information with a testifying expert waives attorney-client privilege as to the information shared.

• Be cautious; don’t share information with testifying expert beyond what’s required for expert to formulate his or her opinion.

Testifying Experts – Attorney/Client Privilege


Consider:

• Does the expert have the requisite skills and training?

• Has the expert’s theory been subject to peer review/publication?

• Has the expert ever been excluded as the result of a Daubert hearing?

• Will hiring the expert present any conflicts of interest?

• Has the expert published any materials that would negatively impact the case?

• Does the expert’s background show any biases in favor of either side (e.g., the expert works almost exclusively for one firm)?

Choosing a Testifying Expert


Federal Rule of Evidence 701 allows lay witness opinion testimony only if it is:

• rationally based on the witness’s perception;

• helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

• not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Parties may challenge lay witness opinion testimony as resting on specialized knowledge and thus requiring a Daubert qualification. Fight boils down to whether knowledge is truly specialized.

Lay Witness Disguised as Expert


More About The Faculty D

ROBERT [email protected]

Rob is a shareholder at Robinson Curley & Clayton P.C.

Rob counsels and litigates for clients in a wide variety of complex commercial litigation matters, including fraud, RICO, shareholder disputes, professional liability and other claims arising from corporate looting and insolvencies, as well as a range of software and technology matters. Rob has practiced in state and federal courts around the country and has successfully argued a number of federal appeals.

Before joining RCC, Rob was a Staff Attorney and Project Director at the Environmental Law and Policy Center of the Midwest, a Bigelow Teaching Fellow at the University of Chicago Law School, an associate at Mayer Brown, and a law clerk for a federal district court judge.



ANGELA ALLEN

© 2016 DailyDAC, LLC d/b/a/ Financial Poise™

[email protected] Allen is a partner at Jenner & Block, Chicago.

Mrs. Allen represents clients in complex bankruptcy and corporate restructuring matters, both in and out of court. She regularly counsels corporate clients in financially distressed situations and insolvency planning matters, and assists clients in protecting their rights throughout the bankruptcy process. She has extensive experience representing debtors, trustees and creditors in bankruptcy litigation matters, including fraudulent transfer claims, avoidance actions, and equitable subordination claims. In addition, Mrs. Allen has experience addressing restructuring and liquidation issues arising in the financial services sector. She also has experience in conducting internal investigations and served as an integral part of the team that represented the Examiner in the Lehman Brothers bankruptcy case. In addition to her bankruptcy and restructuring practice, Mrs. Allen dedicates substantial pro bono time and energy to legal issues involving the military. She serves as director of the Illinois chapter of the Military Spouse JD Network and successfully lobbied the Illinois Supreme Court to adopt a rule allowing out-of-state attorneys whose spouses are serving in the military to receive temporary law licenses. She is also active in the Chicago chapter of the Turnaround Management Association and currently serves on the Board of Directors.

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DAVID [email protected]


David Christian is the founder of David Christian Attorneys LLC in Kansas City. After becoming a partner at two of the nation's largest and most respected law firms -- McDermott Will & Emery and Seyfarth Shaw -- David embraced the changes facing the legal community by forming a boutique practice focused on his particular areas of expertise. David's work led to expertise addressing mass tort liabilities, contingent claims, indemnification issues, and the scope of the discharge in bankruptcy in some of the largest, most complex, and most heavily litigated chapter 11 cases in U.S. history. David also led successful engagements on issues of first impression involving prebankruptcy planning. David's work on distressed transactions led to creative and successful restructurings both inside and outside of bankruptcy around the U.S. David is a certified Six Sigma "Green Belt" who has consulted with clients about the efficient delivery of quality legal services from both in-house legal teams and outside counsel. 29

mailto:[email protected]


KEVIN DUFF


[email protected]

Kevin Duff is a partner in the firm of Rachlis Duff Adler Peel & Kaplan, LLC in Chicago.

He focuses on complex commercial litigation and receivership matters. Mr. Duff represents corporations and executives in multi-million dollar fraud, securities, breach of fiduciary duty, and contract disputes. He has significant experience in professional malpractice actions involving lawyers and international accounting firms, including claims for fraud, illegal tax shelters, and breaches of duty. Mr. Duff represents high net worth individuals and trusts in trust and estate disputes with banks and among adverse family members. He also regularly serves as a federal equity receiver and represents receivers as counsel.

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Important Notes

• THE MATERIAL IN THIS PRESENTATION IS FOR GENERAL EDUCATIONAL PURPOSES ONLY.

• IT SHOULD NOT BE CONSIDERED LEGAL, INVESTMENT, FINANCIAL, OR ANY OTHER TYPE OF ADVICE ON WHICH YOU SHOULD RELY.

• YOU SHOULD CONSULT WITH AN APPROPRIATE PROFESSIONAL ADVISOR TO DETERMINE WHAT MAY BE BEST FOR YOUR INDIVIDUAL NEEDS.