California Litigation Blog : California Business Litigation Lawyer & Attorney : Jeffrey Huron Law Firm : CA Real Estate Law & Contract Disputes

In today’s litigation practice, experts are frequently called upon to give their opinions. Even though experts are paid witnesses, their testimony is invaluable in educating judges and juries. The right or wrong expert is often the difference between winning and losing.

Unfortunately, however, parties and their attorneys often start their search for an expert too late and then settle on the first one who readily agrees with their position and is available on short notice. If this is how you or your attorney go about selecting experts, you are needlessly jeopardizing your chances of success.

The following suggestions for selecting an expert witness come from my years of experience as a trial lawyer in locating, preparing and examining expert witnesses:

• Start Your Search Early. By talking to experts, you may learn of problems with your case. Getting bad news early can save you a lot of time, money and aggravation. Furthermore, if you retain an expert before discovery is complete, he can make sure that you are requesting the right documents and asking the right deposition questions. You also want to win the race to retain the best expert for your case. Most importantly, you want to give your expert sufficient time to prepare.


• Credentials and Experience Are Extremely Important. The expert you select must have impeccable credentials (third world medical degrees will not do) and experience with similar cases. If your expert lacks either, your opponent will exploit your expert’s questionable credentials or lack of experience with the jury.


• Request Reports and Publications. Ask to see some of the reports that the prospective expert has prepared for similar cases. The reports will reveal whether the expert understands the issues and can explain his opinions in a clear and concise manner. Prior publications represent a minefield for prior inconsistent opinions. Therefore, make sure that you obtain and review all the prospective expert’s prior publications before selecting him.


• Give The Prospective Expert All the Information (Good and Bad). Tell the prospective expert all the information, especially the information that is unfavorable to your position. Withholding unfavorable information from your expert will only lead to disaster. When the unfavorable information comes out (and it will), your expert will have to choose between changing his opinion or defending the unreasonable. If your expert is not credible, then his testimony will not be useful to you.


• Meet In Person. Meet with the prospective expert in person. The expert’s appearance and demeanor are important. Is the expert prepared for the meeting? Is he comfortable stating his opinions? Can he explain them in a way that a jury will understand? How well does he respond to difficult questions that your opponent is likely to ask him?


• Check References and Call Opposing Counsel. Ask the prospective expert to give you the names of the attorneys involved in the most recent cases in which he testified. Call the attorneys who used the expert as well as the attorneys who deposed and cross-examined him. Find out what the attorneys on both sides thought of the expert.

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In addition to doing traditional legal research, I regularly search the Internet.  One of my favorite websites is California Discovery & Privilege Law hosted by Richard E. Best, a retired San Francisco Superior Court Commissioner.  As a bench officer, Commissioner Best presided over discovery disputes for twenty years.  Commissioner Best currently serves as a private discovery referee and consultant.  Make sure to bookmark this site; it’s a great reference for meet and confer letters and discovery motions.

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The reality in litigation is:  "The law is whatever the judge says it is."  The chances of getting an unfavorable decision reversed by the Court of Appeal are slim.  According to the 2007 Court Statistics Report, the California Court of Appeal affirmed 88% of decisions made by trial judges between 2005 and 2006.  Therefore, it is important to know your judge.

You can find information about judges on the Internet, by word of mouth, from bar associations such as the Los Angeles County Bar Association, and in Judicial Profiles published by the Daily Journal.  You can also learn valuable information about your judge by researching his decisions which have been appealed. 

If you have never appeared before the judge assigned to your case, you should make a point of observing him and talking to attorneys who have appeared before him.  What is the judge's background?  What is his political bent?  What is his temperament?  How does he manage his calendar?  Does he push cases to settle or trial?  What is his attitude towards discovery disputes, sanctions, and motions for summary judgment?

You may decide for obvious reasons that you do not want a judge who worked as a defense lawyer and insurance adjuster to preside over your client's bad faith case.  You have only ten days to disqualify the judge if he is not right for your case.  Of course, the risk in disqualifying the judge is that you could end up with a worse judge for your case.  However, on the rare occasions when we have disqualified judges, we always have been fortunate to receive a better judge for our case than the one we disqualified.  If you disqualify your judge and end up drawing a worse one, there is always the possibility that your adversary will use her peremptory challenge to disqualify the newly assigned judge.  For these reasons, the risk of receiving a worse judge should not deter you from disqualifying a judge that is wrong for your case. 

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It should not surprise you, but your opponent will play hide the ball and avoid getting pinned down.  Yet many attorneys are not tenacious or creative enough about ensuring victory.  Litigators must think outside the box!  How can you get evidence you need to win your case?  There are always creative ways to locate evidence that your opponent fails to produce.  Here are two examples.

1. We had a case where it was critical to show that the plaintiff controlled a corporation that had received funds as a result of a lender's mistake.  At his deposition, plaintiff testified that he had not heard of the corporation and had not received money from it.  Most people bank near their homes or work.  We identified the banks within a mile of the plaintiff's office and then subpoenaed records pertaining to the corporation from each of them.  Bingo!  One of the banks produced records, including checks signed by the plaintiff to himself, his wife, lawyer, etc.  Case over.
2. A lawyer whose client died in a helicopter crash sued the helicopter company, alleging that a defective part caused the crash.  The company did not produce any documents helpful to plaintiff's case.  The plaintiff's lawyer researched other helicopter accidents and learned of a similar accident, which led to the discovery of a prior lawsuit against the company in another state.  After tracking down the other plaintiff's lawyer, obtaining and sifting through old files, there it was - an internal company memorandum recommending a recall of the part.  The result: a $14 million verdict in a case that the lawyer would have otherwise lost.

Tenacity and creative thinking pay off.  Are you doing enough to win your case?

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