7. Expert Discovery

Fact and/ or Expert Witnesses Much of today's litigation involves complicated factual issues concerning areas such as medicine, psychiatry, engineering, economics, rehabilitation, and law. When issues are beyond the common knowledge or understanding of a judge or jury, "expert testimony" by "expert witnesses" may be necessary. An expert witness might be called to testify as to certain facts and give expert opinions on complex, factual issues. The primary difference between a fact witness and an expert witness is that an expert is permitted to offer his/ her opinions, whereas the former is only able to testify as to facts within his or her knowledge. Someone can be both a fact and an expert witness. For example, a treating or examining physician may be called as a fact witness to testify regarding the examination, care, and treatment of a party, but could also be offered as an expert witness, who is requested to give opinions on such issues as diagnosis, causation, prognosis, permanency, disability, need for future treatment, and the reasonableness of costs for past or future treatment. In investigating or evaluating a case with complicated factual issues, an expert might be asked to simply assist an attorney or party in understanding the issues. In doing so, the expert might become an "expert consultant" or a "specially retained expert”. This type of individual does not thereby agree to be an expert witness for that party, and can limit his/ her review or involvement in the case to that of a consultant, with no obligation to give expert testimony. An expert consultant or specially retained expert may agree to become an expert witness on the issues he or she has reviewed. These could be on complex issues of causation, or the apportionment of injuries among multiple causes, and concern products liability, medical liability, workers compensation, or other personal injury actions. This can also include issues such as "standard of care", “custom and practice in the industry”, “informed consent”, or areas related to the propriety of conduct, or to responsibility. Choosing and Disclosing Experts If an expert is to be utilized, several items have to be kept in mind. The “paper qualifications” of the proposed expert, while important, are an insufficient basis on which to make a selection. The impression the expert will give to the jury is at least, if not more, important than objective qualifications. Whenever practicable and prior to retention, counsel should meet with the expert to evaluate his/ her quality as a witness. Of course, if counsel is already familiar with the expert, this step may not be necessary. In addition, the proposed expert’s availability to testify and to provide a report within applicable time constraints are important factors. Sometime before trial, parties must disclose their expert witnesses to the other side and to the court. Simply because an expert is disclosed by one party or another does not suggest that the expert's opinions are expected to be totally favorable to that party, or that the expert should be anything other than fair and objective to all sides. The disclosure of experts is pursuant to the governing rules in the court where the case is filed. If the expert is disclosed past the required rules deadline, he or she might not be allowed to testify. The rules vary from jurisdiction to jurisdiction, but they can be quite specific and/ or very broad on the items that have to be disclosed about an expert. Often, these are items such as: a copy of the expert's report or summary; a complete statement of all opinions to be expressed, and the basis and reasons for them; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial, or by deposition, within the preceding five years. Discovery and Disclosure In the discovery phase, a treating physician, one who has given care and treatment to a party, could be asked for medical records, medical reports, and patient billing. Likewise, a company's CPA may be required to share financial records, tax returns, and client billings. A physician who has never treated a party might be requested to perform a mental or physical examination, or an accountant who has never worked for a party can be asked to review books and records and report on behalf of a party solely for purposes of the litigation. Experts such as treating physicians are often identified and used as possible witnesses based only on their role as a treating physician and the notes or records they have generated -- even though they have never been contacted by the lawyer. The disclosures required about these sorts of experts are much less burdensome. Note that opinions or other potential testimony of an expert which are not adequately disclosed to the other side and to the court may result in their testimony being precluded at trial. The scope of disclosure and discovery permitted could vary greatly from jurisdiction to jurisdiction. For example, some states permit depositions of expert witnesses in the same fashion and to the same extent as fact witnesses (New Jersey, for instance), whereas other jurisdictions do not permit such depositions, or severely restrict the opportunity to take them (New York). Depositions and Testifying After an expert witness is disclosed, and, if the rules permit, he or she may be requested to submit to a deposition, so that the opposing attorney can gain further knowledge as to that expert's opinions and possible testimony. This also assists the opposing attorney in assessing the need for obtaining an expert to address the same issue. If the case proceeds to trial, those disclosed as expert witnesses might be called to testify. The party who calls the witness asks the first series of questions on "direct examination”. The opposing attorney can then "cross-examine”, and there can be further "redirect examination" by the attorney who called the witness. Adequate pretrial consultations should prepare the expert for the trial testimony.

8. Pre-Trial Motions

Before trial, the parties may file motions to request the court to rule or act. Motions usually pertain to law, to facts in the case, or to discovery disputes, but sometimes they seek clarification or resolution of procedural disputes between or among the parties. Some motions, such as for summary judgment, which asks the court to dismiss part or all of a plaintiff's case or a defendant's defense, dispose of issues without a trial. Other motions ask the court to order a party to produce documents or to exclude evidence from trial. In some instances, a court hearing is to consider the arguments of the parties. Scheduling of the motion is under the complete control of the court and judge, pursuant to specific court rules. After motions are heard, the case is generally ready to go to trial.

9. Alternatives to Litigation

Some of the alternatives to litigation are settlement, arbitration, and mediation. Settlement The reality is that most cases never proceed to trial; the vast majority of them are resolved through settlement. Settlement can occur though informal discussions between opposing parties or though alternative dispute resolution, such as mediation or arbitration. Effective and economical case management involves promptly completing a sufficient amount of investigation and discovery to show the opposing side that you are serious about proceeding to trial if the case is not settled. And, it enables effective argument of the case at mediation, while still preserving other non-critical investigation and discovery for the future (thus saving time and money in the event the case settles). If the case does not settle, additional discovery and investigation will probably be necessary to prepare the case for trial. It is generally wise at the outset of any litigation to review the potential for, and prudence of, an out-of-court settlement. Typically, the court does not require the parties to discuss or to attempt settlement, but most courts have procedures by which a party can request the court's assistance in settlement. Arbitration Arbitration is an adversarial proceeding in which the parties select a neutral third party, an arbitrator, to resolve their dispute. The process is abbreviated and is less formal than a trial. Arbitration often arises from private agreement, but many courts also require the parties to smaller disputes to explore arbitration as an option to trial. Parties who agree to settle their dispute utilizing "binding" arbitration normally cannot appeal the arbitrator's ruling to the court. While there are numerous pros and cons to binding arbitration, the most critical con is the lack of any appeal or reconsideration. Mediation Mediation involves a neutral third party as well. It is the mediator's job to assist the parties' settlement efforts. The parties select the mediator, who meets privately with each of them to discuss the strengths and weaknesses of their cases. A mediator helps the parties identify the risks of the case and encourages them to consider how those risks can affect their goals. Mediators do not make decisions and cannot bind the parties to any result; they merely attempt to facilitate settlement. Whether arbitration or mediation is feasible and practical ordinarily depend upon the parties' willingness to employ these methods. Each alternative usually saves time and expense, but neither is guaranteed to bring both a final and satisfactory resolution to the matter. The desirability of these alternatives should be evaluated early-on to allow their timely implementation.

10. Trial

At trial, the parties present evidence in support of their claims or defenses to a jury and/ or judge. Immediately before trial, each party gives the judge a brief which outlines the arguments and evidence to be used at trial. If a jury trial is requested, both sides are offered an opportunity to interview potential jurors and ask that biased or unfriendly jurors be excluded from participating. The process of jury selection is called voir dire, and it varies dramatically from jurisdiction to jurisdiction, and even from judge to judge. Once the jury has been selected, each party presents its outline of the case in an opening statement. The plaintiff's side goes first. Witnesses are called to testify, and then they are cross-examined by the opposing counsel. Each party may call witnesses or introduce documents and exhibits in support of its arguments. Sometimes, after the defendant has finished its case, the plaintiff is allowed to present additional, rebuttal evidence. When all of the evidence has been presented, the parties give their closing arguments. After closing arguments, the court instructs the jury on the law to be applied. The jury then deliberates to reach a decision or a verdict. Motions After the Verdict A party can challenge a jury's verdict. Errors of law committed by the trial court or a jury's disregard of law or evidence are common reasons for challenging a verdict. A motion for judgment “notwithstanding the verdict” (or similarly designated) asks the court to disregard the jury's verdict and enter a different decision. A motion for a new trial asks the court to set aside the verdict and order a new trial of the case. The party which prevails at trial will file a motion requesting the court to order the losing party to pay the prevailing party's costs to prosecute or defend the case. Recoverable costs are defined by rule, statute, or private agreement and generally do not include attorney fees. Recoverable amounts rarely reimburse all of the out-of-pocket costs a party incurs during the course of a lawsuit.

11. Appeal

In some jurisdictions, appeals of any rulings by the trial court, such as discovery or other pre-trial motions or rulings on evidence, are permitted during the pendency of the underlying matter. In other jurisdictions, appeals are only permitted after the case has been concluded, unless an appellate court can be convinced to hear the appeal while the underlying case is still ongoing (an “interlocutory appeal”). Following trial, a party dissatisfied with the result may appeal it. During an appeal, a party asks another court to review the trial court decision or proceeding. The parties present their arguments in briefs, which are submitted to the appellate court, along with the record of evidence from the trial court. Oral argument before the appellate court is not guaranteed, and an appeal might extend the litigation process by a year or more. The appellate court typically reviews a case for legal error only. Except under unusual circumstances, the appellate court will not review factual evidence or disturb a jury's findings of fact. The appellate court announces its decision and affirms the verdict if it finds no error, or, if an error is found, the appellate court may either reverse the verdict, or send the case back (remand it) to the trial court to conduct a new trial or hearing, or to expand the record.

SYNOPSIS

In this two-part article, we’ve described the common sequence and procedures of a case which proceeds in an ordinary fashion. Agent/ broker E&O cases can be far more complex, and several detours from the “normal” process and sequence might occur. Factors such as jurisdiction, the number of parties, the amount in controversy, strategic decisions by counsel, agreement among the parties, and/ or case management by a particular judge could alter the normal trial process and sequence. But, if there is any certainty in the lifetime of a lawsuit, it is that . . . nothing is certain.