Getting the Most from Expert Witnesses

Speaker 1 [00:00:03] Welcome to the effective of a podcast for ambitious attorneys who want to improve their practice. My name is Jack Zenda and I'll be your host. I'm Jack Zenda, and I'm here with my law partner, Joe Caputo, and two of our top trial Speaker 2 [00:00:30] lawyers, Neil Solomon Speaker 1 [00:00:32] and Chrissie Hagan, as well as our brand manager Kelsey Barzee. Today, we're going to talk about one of the most important topics for a trial lawyer and especially for attorneys new to the practice of personal injury law, and that's dealing with expert witnesses. This can be a very treacherous area where if you make a mistake, it can really devastate your case and really hurt your pocketbook. Speaker 2 [00:00:55] Hey, guys, Speaker 1 [00:00:56] how y'all doing today? Speaker 3 [00:00:57] Doing well, ready to get out of the heat? What about you guys doing well? Speaker 4 [00:01:00] You're doing well. Good to see everyone at everyone. Speaker 1 [00:01:04] I'm up in Colorado, so I'm one step ahead of y'all. Although it was one hundred and three here last week, so Speaker 2 [00:01:12] wow, look cooler today Speaker 3 [00:01:15] following you. Speaker 4 [00:01:16] So there's so much to cover when it comes to working with experts. Speaker 2 [00:01:21] So let's dove into this topic. Speaker 4 [00:01:24] So the first question, I guess, is when should you absolutely Speaker 2 [00:01:28] hire an expert witness? Speaker 1 [00:01:31] That's a great question, Kelsey. And I think before we jump into that, I think maybe we can talk about the different types of expertize that you might encounter in a case and then what stages it may make sense to to engage those. So one of the types of cases we work a lot are on our tracking cases. And typically, you have the two types of expert witnesses. You're going to run into our liability Speaker 2 [00:01:58] witnesses, expert witnesses Speaker 1 [00:02:00] and damages expert witnesses. So why don't we just start talking about the trucking context and we can just talk about the types of liability experts we may use and when's the right time to engage those? Joe, I know you and I've worked on a lot of trucking cases together. Let's talk about when Speaker 2 [00:02:20] we type typically like to get an Speaker 1 [00:02:21] expert involved in those cases and if we're going to hire. Speaker 3 [00:02:24] Yeah, that's a good question. We've worked on quite a few at the time to hire the liability expert in those cases is right away, right? Speaker 2 [00:02:34] If I'm a defense Speaker 3 [00:02:35] attorney knowing what we know on the other side of these cases, and there's a plaintiff's firm that is not getting an inspection done with an expert, I know that either they don't know what they're doing or they don't believe in the Speaker 2 [00:02:51] case, right? And so it Speaker 3 [00:02:53] it's crucial to make Speaker 2 [00:02:55] sure that not only are you Speaker 3 [00:02:56] preserving evidence, but you want to make sure that your liability arguments are sound. You want to find out if there's anything wrong with the tractor or the trailer. You want to make sure that these drivers are over their hours if Speaker 2 [00:03:10] they apply Speaker 3 [00:03:11] and you need to get that information sooner rather Speaker 2 [00:03:14] than later. Speaker 3 [00:03:15] So what we're typically looking for is a reconstruction expert that can not only inspect the vehicles, but download the black box, get all of the data at the Speaker 2 [00:03:29] scene and recreate Speaker 3 [00:03:31] the Speaker 2 [00:03:31] crash. Speaker 3 [00:03:32] And then simultaneously, Speaker 2 [00:03:34] you know, in a lot of Speaker 3 [00:03:35] cases, we may use a fleet management Speaker 2 [00:03:38] expert, Speaker 3 [00:03:39] especially with trucking companies that have hundreds or even thousands of units. So we're not only focused on the crash itself, but really the hiring, the training and the supervision causes of actions. And that's really where that fleet management Speaker 2 [00:04:00] or safety Speaker 3 [00:04:00] expert can come into play and really drive the value the case. Speaker 1 [00:04:04] You know why so early on in especially a case, whether it's a trucking or another catastrophic injury case, you think it matters Speaker 2 [00:04:13] to bring in an expert Speaker 1 [00:04:15] that early? Speaker 2 [00:04:16] Neil, what Speaker 1 [00:04:18] are your thoughts on that? Speaker 2 [00:04:19] Yeah. So in any type Speaker 1 [00:04:21] of case like this, you have to secure the evidence as soon as possible. Speaker 2 [00:04:25] And so you're going to want Speaker 1 [00:04:27] to get out to the scene, make sure that any evidence that's there is getting documented photographs, taken measurements, Speaker 2 [00:04:33] taken 3D Speaker 1 [00:04:35] scans, whatever else you may need for that area. But even more so for the truck. They may be trying to fix Speaker 2 [00:04:41] it or Speaker 1 [00:04:43] remedy a lot of the problems that may be there afterwards. And so that's where getting a letter out as soon as possible, instructing them not to destroy or alter any evidence and preserve it for you, and getting inspections set up and potentially filing a temporary restraining order to ensure that the defendant isn't getting rid of any of that evidence. Everything related to the truck. All the documents related to the files related to it, as well as the cell phone. And so a lot of times will send a specific letter related to cell phones to make sure that the drivers are thrown away their phones as soon as this thing happens, who's a lot of good information you can find on their. Speaker 4 [00:05:21] To start early so you can consult with experts on what to ask for and discovering what types of requests to send. Who would be ideal to start deposing, Speaker 2 [00:05:32] you know what Speaker 4 [00:05:33] order to take the positions, who you want to talk to a particular what information you want to get from each person. So it's helpful to talk to experts. So you know what type of info to gather on that and as well. Speaker 3 [00:05:43] Something I've seen twice in the last month. I've talked to you about this yet. These defense folks are getting pretty creative. So you have these tractor trailer crashes and we're trying to inspect them. And, you know, within two weeks of the crash happening, the truck, the tractors in Mississippi. Speaker 2 [00:06:02] But the trailer Speaker 3 [00:06:03] is in California, and it's kind of a problem for us. So we're trying to figure out what to do Speaker 2 [00:06:12] because that can be double Speaker 3 [00:06:14] the cost and double the expense and we need to make decisions pretty quickly. Speaker 1 [00:06:19] Yeah, I mean, you know, my typical rule on those things are the more the defense is trying to hide the evidence, the better it is for our case. And I tend not to believe in coincidences, especially if it involves a serious injury. You know, is there a chance that that was accidental? Yes. But it could also be that there's some critical piece of evidence that you're missing that's there in a couple of points. I just want to reiterate. I think that spoliation notice is really critical at the front of the case. Speaker 2 [00:06:49] And for those of you Speaker 1 [00:06:51] that don't practice trucking cases or catastrophic injury cases a lot, the spoliation letter basically puts them on notice that there is evidence that is important to the case that if they destroyed, it could hurt a jury's ability to evaluate the evidence, which then could have an impact at trial. And you get what's called a explanation instruction. Speaker 2 [00:07:13] A lot of jurisdictions Speaker 1 [00:07:15] have strong spoliation law. Some have weak spots in law in Texas. Is semi weak. And so we go the next level of following. What he was referring to is a temporary restraining order which actually gets an order from a judge Speaker 2 [00:07:30] to preserve the evidence. Speaker 1 [00:07:33] So we talked about a few the trucking type of experts that you're dealing with, you know, fleet management, accident reconstructionist. Let's talk somewhat about when you engage them. How do you first Speaker 2 [00:07:44] find the type of Speaker 1 [00:07:46] expert you want to work with? And then how do you go about getting those experts? Speaker 4 [00:07:52] I think various lessons are great places to start. So you can get feedback from other attorneys that have used that particular person before. I know whenever I've reached out to other attorneys in our practice area, there are always more than willing to talk about their experiences with that particular expert. Pros Cons Any issues they ran into, whether they recommend them or not. So that can be super helpful. And there's so many different lessons you can get on, you know, local national ones. Different bar associations have different listserv, so that can be super helpful. Speaker 3 [00:08:28] In addition to that, you're not only local trial attorneys, people that you and your firm have worked with before. Speaker 2 [00:08:34] You know, Speaker 3 [00:08:35] whether if you're an AA J or 88 is tracking this service can be helpful. But there are also companies I know we've gotten creative and have used some companies that specialize in directing us towards experts in a particular field. Now, oftentimes, we're using those experts when it's, you know, it's not a reconstruction expert in a tracking case, it's maybe a more nuanced case or a subset of specialty. But between trial lawyer references and listservs and and third party vendors that do this work there, Google as well, right? But there are tons of different ways to get out in front and see who all may be able to help in these cases. Speaker 1 [00:09:21] Yeah, the one other idea to add to that, if you already know of the person, is Speaker 2 [00:09:25] go Speaker 1 [00:09:26] look on your website or Lexis account and look up cases and results, or even verdict search and find cases that have good results. And you can look through and they'll announce who the actual experts were on those cases. And that's a great way to just look yourself nationwide and find out who's gotten a good results and provide opinions about somebody else. Yeah, and I would be persistent a lot of times finding the right Speaker 2 [00:09:51] expert Speaker 1 [00:09:52] is really important and it's not going to be the same one for every case. Geography can matter a lot because that can have a major impact on the expense, how busy they are. Are they going to be available for deposition or trial later on? And when you first reach out to the expert, they're probably going to run a conflict check. And if it's a good experience, they work on both sides of the V. Sometimes they're conflicted out, which can be a positive sign, which means that the defense is taking the case very seriously, which means that expert was actually hired on that case. Speaker 2 [00:10:26] And sometimes it's a Speaker 1 [00:10:26] race to who can get to the expert first, if there's someone really important to do particular type of case that you're looking at. So, you know, you look for the expert, you looked on your list serves, you looked on Westlaw, Speaker 2 [00:10:39] you Speaker 1 [00:10:40] chat, you've asked around verdict search. Let's say you've narrowed it to a couple Speaker 2 [00:10:45] experts that you like. What are the things Speaker 1 [00:10:47] that you all look for to help that those experts? Sure, I'll jump in. So the first thing is is you may be checking those same resources to see Speaker 2 [00:10:57] what other Speaker 1 [00:10:57] attorneys have said about him. There's a lot of resources through Westlaw or Lexis two to search Speaker 2 [00:11:03] on, Speaker 1 [00:11:05] you know, if they've had any issues, you can do your own social media search to see what's out there and see what you can find. You'll be amazed that you can find out they're just posted out there for the world. And then also, you may even ask a lot of times experts will give you references of other attorneys that they work with. And so really talking through the issues with, I think the biggest thing is just actually getting them on the phone and talking through the issues, and you can see if they're Speaker 2 [00:11:29] asking important the important Speaker 1 [00:11:32] questions that you think matter most for your case. Speaker 2 [00:11:35] No, I think Neal hit the nail on the head, right? These people are Speaker 3 [00:11:40] oftentimes going to be taking all of the facts and spoon feeding the jury your liability argument. Speaker 2 [00:11:48] So do they make a good witness? Speaker 3 [00:11:51] Are they believable? And then look at their track record. Look at their CV. Read deposition transcripts from Westlaw or trials that are available, and then call the attorneys for whichever side of the case they were on that retained these Speaker 2 [00:12:07] experts and Speaker 3 [00:12:09] find out what they thought. It is many Speaker 2 [00:12:11] different data Speaker 3 [00:12:13] points. You can add and make sure that when you're spending this money, that you can do it confidently. Speaker 5 [00:12:20] Zinda Law Group is a plaintiff's personal injury law firm, made up of over 30 lawyers that handle catastrophic personal injury and wrongful death cases throughout the United States. We regularly co-counsel and joint venture with firms across the country. Over the last several years, we have paid millions of dollars in joint venture counsel fees, the law firms we work with. If you are a law firm or attorney and have a catastrophic personal injury or wrongful death case, you would like to joint venture or work in the law group on please reach out to us at 800 eight six three five three one two or email us at info at Z D Firm Dot Com and we can set up a time to discuss your case. Speaker 1 [00:12:58] Yeah, and I think you know some other things you may want to look at or ask them the tough questions. Have you ever been struck before? That's an uncomfortable question to ask someone. Speaker 2 [00:13:11] It's like, Have you Speaker 1 [00:13:11] ever been divorced? It's like an uncomfortable thing to ask, but you need to ask because you don't want to find out when they're being deposed that they've been struck five six, seven times. Just because an expert has been struck doesn't mean they're not necessarily good at their job. You could have been just a one off case, but you need to know that because you have to protect your client. I'd also ask them about speaking engagements, places that they've spoken before, because if they turn out to be speaking of things that put them outside of what you're going to have them opine about, that can be problematic for the case. Speaker 2 [00:13:46] But do a Google Speaker 1 [00:13:47] search see if there's bad stuff that comes up now, some experts, especially in the medical context, may not be practicing medicine anymore because they got in Speaker 2 [00:13:57] trouble with the medical board. Speaker 1 [00:13:58] So they look to go, testify and experts. You want to be careful to make sure you're vetting those different credentials. And we have a really detailed questionnaire that we have the attorneys go through to ask those questions because most of the time you're talking about several thousand dollars, if not tens of thousands of dollars when you engage this expert on the front end. So are we found our great expert? We've got it on. We feel good about, um, let's talk about what's usually the elephant in the room, which is price. How do you deal with managing cost expectations? And I will tell you, I learned this lesson the hard way June. I worked on a couple of cases together where one expert in particular, I feel like every week we get another invoice for $5000. It was like thinking about file, thinking about thinking about file, opened the file. Typed my name on the file and I learned the hard way you have to really control costs. Get out of control fast. So what are some of the tactics that we use to help control costs and really keep those in line? Speaker 3 [00:15:02] Jack, don't forget about the invoice we got for the draft of the case situations as well. There are a couple ways that you can Speaker 2 [00:15:11] protect yourself on the Speaker 3 [00:15:12] front end. Price your expert out Speaker 2 [00:15:16] and price them Speaker 3 [00:15:17] out, not through report or not through deposition, but through trial. Because you don't want to get in a situation Speaker 2 [00:15:26] where you Speaker 3 [00:15:28] took the depositions, you had the reports Speaker 2 [00:15:30] and oh, Speaker 3 [00:15:31] now it looks like the case didn't resolve. You need to try it and you're out of money for the case. You spent too much already. Speaker 2 [00:15:37] So make sure that Speaker 3 [00:15:39] you can take this particular expert from the point of hiring to trial before you get them Speaker 2 [00:15:45] on board. And then you're Speaker 3 [00:15:47] kind of walking a fine line because until recently, at least in Texas, in every state's different, different correspondence back and forth may or may not be discoverable. One worry that we used to Speaker 2 [00:16:01] have is if it Speaker 3 [00:16:02] appeared like we were limiting the amount of time or the documentation that the expert was allowed to have, right? Because if you're on the other side, you're like, Well, this attorney didn't give you all the information or told you that you could only look at it once for an hour Speaker 2 [00:16:18] with the Speaker 3 [00:16:19] opposite end of the spectrum being, you know, you get a bill for $100000 and it should have been Speaker 2 [00:16:26] 10. Speaker 3 [00:16:26] And so a lot of times what we're doing is we're sending out letters to the experts and we're asking them, you know, whatever we budgeted for the case, we'll give them a now. Speaker 2 [00:16:40] And we'll say, if you go Speaker 3 [00:16:42] over this amount working on the case before you continue any work, please give us a call. Speaker 2 [00:16:49] And then I found that that's Speaker 3 [00:16:50] kind of a good middle Speaker 2 [00:16:51] ground so that we're not Speaker 3 [00:16:53] limiting the expert in any way, shape or form during cross-examination. But we're not stumbling upon and build its way in excess of what we had budgeted Speaker 2 [00:17:04] out of Speaker 3 [00:17:05] thin air. Without you, I'm sure you have a couple tactics as well and probably deal with the same things we're talking about. Speaker 1 [00:17:11] Yeah. So I like to have a pretty frank conversation with the expert on the front end and asking for a proposed budget. And I think that is really important for your case and you is obviously weigh into your client's injuries and what you think about the case itself and the posture of it all. Speaker 2 [00:17:28] So number one, I think talking Speaker 1 [00:17:31] with them and as long as you're open and honest with the expert about your expectations of the case generally will work out every once in a while. I think we've all had that experience with that. We went rogue and Speaker 2 [00:17:42] charged you Speaker 1 [00:17:43] through the roof and you weren't really expecting it. And I think that happens to you once and then you learn your lesson and you make sure to stay on top and a little better. You know, I used to be and I was a good crazy. Speaker 4 [00:17:53] No, it's OK. I was going to say I've learned to be super mindful about what documents I send an expert. And that's another thing that I get into in that initial call is what specific documents do you need in order to come up with your in order to get us your opinion, draft a report so that we're we're not sending things that are unnecessary, that they're going to charge us for reviewing, but ultimately not need and not have any bearing on what the report's going to say. Speaker 1 [00:18:21] What do you think is important about trying to pick what to send the expert like? How do you go about deciding? I could see it being a double edged sword one. Speaker 2 [00:18:28] If you send Speaker 1 [00:18:29] them stuff that doesn't matter, they're going to review it and it's Speaker 2 [00:18:33] going to cost money Speaker 1 [00:18:34] and their time, and they may go down some rabbit trails at the same time. The easiest thing to cross-examine an expert on is like, Well, you didn't look at this document. Speaker 2 [00:18:43] So do you have some thoughts Speaker 1 [00:18:45] on how you go about deciding what to send them and whatnot to? Speaker 4 [00:18:49] Yeah, I think that sometimes comes up during subsequent phone calls with the expert. You know, if it's a liability expert, obviously not sending them any records or anything like that, they don't need anything related to damages. And then just keeping them up to date on the status of the case. So, you know, initially they're going to request the crash report. That might be all you have. Speaker 2 [00:19:12] Once you get the case Speaker 4 [00:19:13] and once you retain the expert and then you'll do the scene, inspection and best, Speaker 2 [00:19:18] the truck is a trucking Speaker 4 [00:19:19] expert, for example. And then as you get deeper into discovery, you're probably going to want to set a follow up call to let them know any additional information you've gathered or receive from the other side, and if that's something they Speaker 2 [00:19:31] might need and forming Speaker 4 [00:19:32] their opinion on the case. So I think, you know, leaving it up to the expert. Speaker 2 [00:19:38] Keeping them informed Speaker 4 [00:19:39] about what's been disclosed so they can say that they're aware of that and made that determination on whether it's something they need to review as part of their expert opinion. Speaker 3 [00:19:48] I'm so sick and tired of all these defense attorneys sending Speaker 2 [00:19:53] orthopedic Speaker 3 [00:19:54] doctors and neurologists Speaker 2 [00:19:57] the crash report and property Speaker 3 [00:19:59] damage photographs, right? It's ridiculous why they do it so that they can, you know, direct examination, say that they had more knowledge about the case then than the treating. Doctors are retained experts. Speaker 2 [00:20:15] But yet I don't know about you. Speaker 3 [00:20:17] I've never taken my property damage photographs to the doctor Speaker 2 [00:20:22] with me for the purpose Speaker 3 [00:20:24] of of helping them diagnose my injuries, right? So like, it's a bunch of hogwash. But there's also there's a difference between sending the documents to your expert and making sure they're focused in on reviewing those documents. Right. Speaker 2 [00:20:39] And so if you're Speaker 3 [00:20:42] kind of 50 50, you're not sure whether or not to send it or not send it, Speaker 2 [00:20:46] send it, Speaker 3 [00:20:47] but maybe follow up with the expert and say, Hey, you know, I wish you really focus your time and energy because we have limited time and energy on this stuff. But I want to give you the opportunity to just see it all. And that way, you don't get hit with the bill. They're not looking at stupid stuff. But you also don't have the cross-examination technique where they show you 20 documents that their guy saw and you're grounded Speaker 1 [00:21:12] to two questions. One is Speaker 2 [00:21:14] hogwash a legal term of art Speaker 1 [00:21:17] because the way you use it is just brilliant. I love how you interjected that in doing the five bucks. Number two, you know, I think that some Speaker 2 [00:21:26] really great points, I guess, is Speaker 1 [00:21:27] an aggression for a point. I think trying to talk to your expert about what matters in staying engaged with them, you know, because there's two really important times, especially if it's your ability to at the beginning, it's before the report is due. And I think when you're sending them a lot of stuff, depositions, discovery, I like to talk to them and explain, OK, here's what I think would be the important takeaway from this deposition. Here's what I think is the important takeaway from this piece of discovery. That way they are. Speaker 2 [00:21:58] They are reviewing Speaker 1 [00:21:59] it with that in mind, Speaker 2 [00:22:00] and it's not like Speaker 1 [00:22:01] a needle in a haystack, Speaker 2 [00:22:04] because if you just Speaker 1 [00:22:05] send them eight depositions, they will review all eight depositions and charge you for review and all eight of those which may not be the end of the world, but it may not be what you want them to focus on with the woman amount of money and time that you've got. What about dealing with consulting versus testifying experts? I remember when I was a young attorney, that was a really tricky area to figure out, like, when are you consulting? When are you testifying? How does that affect the case? So what are some examples where you have used a consulting expert and maybe they never became a testifying? Or maybe they switched over to testifying later? Sure. So I'll jump in. I think that really, in any case, I guess it depends first off on what stage you're at in your specific rules. But a lot of the time, Speaker 2 [00:22:53] if you Speaker 1 [00:22:53] retain somebody as a consulting expert to start, then you're able to have them take a look at all the information and they're just not providing any opinions. And so, for example, that accident recon or reconstruction Speaker 2 [00:23:08] expert can go out, look at everything Speaker 1 [00:23:11] at the scene and maybe they provide your opinion is not particularly good for your case, and so you don't want them to come and testify as part of your case in chief. When you're you're giving your expert designations were the ones that have them do first. And so if there's some reason that we don't want to use them, then Speaker 2 [00:23:28] we just keep that Speaker 1 [00:23:29] as a as a Speaker 2 [00:23:30] retained, excuse me, Speaker 1 [00:23:31] as a consulting expert. We don't have to disclose them somebody now. They have a good opinion and we say, Well, we're going to want to use them to testify in court. Speaker 2 [00:23:40] Then we move them Speaker 1 [00:23:41] over, have them draft a report and disclose them with their opinions when the time comes. And so Speaker 2 [00:23:47] it's it's really just Speaker 1 [00:23:48] a way to get their opinions, and you can always decide not to use them if you need to go on to. Speaker 3 [00:23:56] I think I think you're exactly right on the damages side where I've used consulting experts, a lot is on cross-examining opposing experts, right? Speaker 2 [00:24:08] Because in a Speaker 3 [00:24:10] damages situation, let's say we don't have a lot of retained experts for damage or the retained experts we do have are opining in the way that the defense experts are. And so if I have Speaker 2 [00:24:26] a neuropsychologist Speaker 3 [00:24:28] instead of retaining my own or trying to get on the phone with the treating doctor who's, you know, those conversations or are not privileged, Speaker 2 [00:24:38] I may just spend Speaker 3 [00:24:39] an hour or two consulting with the neuroscience expert, sending the report or the disclosures over to that consulting expert and have me walk through the report. What are some good ways to cross-examine these folks? What do they have, right? What do they have wrong? What do you know about this neuroscience and what questions do? What more information do I need that they didn't necessarily disclose in Speaker 2 [00:25:05] these reports or Speaker 3 [00:25:06] disclosures that I need to follow up on? And sometimes that gives you more bang for your buck because Speaker 2 [00:25:14] you're really Speaker 3 [00:25:14] getting the lay of the land on the experts report without having to hire your own expert to combat it that you're retaining and disclosing. Speaker 1 [00:25:23] Yeah, I know a lot of times we've even use them to evaluate if we want to take a case or not, especially if you're dealing with some interesting premises or construction cases, which we've run into. And we had one in particular where a piece of Speaker 2 [00:25:39] a piece of Speaker 1 [00:25:40] debris fell on our clients head and injured him very, very badly. And it was really confusing about what happened, and he didn't know and we couldn't find witnesses. So we engaged an expert in OSHA regulations and construction liability, pretty much like the first week of the case. Just to kind of help us figure out what should we be looking for and do we have a liability case here? And there's been a lot of times where on the liability front, they'll help us realize maybe there's not a Speaker 2 [00:26:10] case know, maybe we're Speaker 1 [00:26:11] not going to survive summary judgment on that front. A lot of the experts will definitely want to talk to you about your case and let you know whether or not you have something. Speaker 2 [00:26:20] And most of them were Speaker 1 [00:26:22] saying busy enough to where if you don't have something to let you know, hoping that they're being honest will come back to them the next time. So it's a great resource and a lot of time you don't even necessarily have to to pay for their time to start out. Speaker 4 [00:26:36] I think you can also use consulting experts if there's a very specific issue in your case that you're worried about the other side bringing up, but it's not such a big deal that maybe it's not something that even gets addressed. And so if that is something that the defense discloses, you'll have that person at your hands for a rebuttal. Speaker 1 [00:26:56] Let's talk a little bit about impeaching the other side's experts. What are some? Well, let's start with just the idea of like, what is your objective when you take the deposition Speaker 2 [00:27:07] of an opposing Speaker 1 [00:27:09] the opposing party's expert? So let's talk about kind of what your objectives are and then how you go about achieving those in the steps to do that. Joe, to start with you? Speaker 3 [00:27:19] Yeah, I think it depends on the situation and the type of expert and what we think of their disclosure and report, but ultimately, a few things come to mind. You're trying to one Speaker 2 [00:27:31] potentially strike or limit Speaker 3 [00:27:33] their testimony. Right. So you're talking Speaker 2 [00:27:36] about dobare Speaker 3 [00:27:38] challenges or limiting their testimony. If they can have a wide ranging opinion and you think you can get them honed in on a particular area? Speaker 2 [00:27:49] We also want Speaker 3 [00:27:49] to find out just what their Speaker 2 [00:27:50] opinions are, right? A lot Speaker 3 [00:27:52] of states Speaker 2 [00:27:52] have pretty general Speaker 3 [00:27:54] disclosure requirements. And so you may not get a report Speaker 2 [00:27:59] with the designation Speaker 3 [00:28:01] and this is your one time to figure out what opinions do you Speaker 2 [00:28:04] have? Are the Speaker 3 [00:28:05] basis of the basis of those Speaker 2 [00:28:07] opinions and what credentials Speaker 3 [00:28:09] do you have that allow you Speaker 2 [00:28:11] to Speaker 3 [00:28:13] come to that opinion? And then third, maybe we want the defense attorney to know how this is going to go in trial, and that's a decision that we have to make sometimes in the moment, but sometimes ahead of time, we may have some really Speaker 2 [00:28:28] good impeachment Speaker 3 [00:28:30] evidence. Speaker 2 [00:28:32] We have to Speaker 3 [00:28:33] decide, do we want to hold on to Speaker 2 [00:28:34] that? Speaker 3 [00:28:35] Because that's definitely less effective the second time in trial? Or is it so good that we just can't help ourselves, Speaker 2 [00:28:43] which is Speaker 3 [00:28:43] is sometimes, you know, the decision just kind of depending on the case. Speaker 2 [00:28:48] But I I would think Speaker 3 [00:28:49] through long and hard, if you have good impeachment evidence, do we want to utilize this to have them see how it's going to go and also increase the settlement value? Or does that not make sense? And let's utilize this information when they're on the witness stand at trial. Speaker 4 [00:29:07] Yeah, you definitely want to attack their credibility and really get across to the jury that this is someone who testifies the exact same way and every single case I remember before I took my first expert deposition, one of the tactics that Joe and I discussed in preparing for that one, it was a billing expert, and he said, go through her report, you know, we know this is so boilerplate and ask her to cross out everything that is incorrect because there was just so many things in there that were incorrect. You know, I think she had the date wrong. Speaker 2 [00:29:41] She had heads Speaker 4 [00:29:43] instead of next year. And so it was actually really funny because I went through the report and I said, You know, you hear you have that the, you know, brain MRI should have cost two thousand dollars. Well, she had an MRI on her lower back, right? And she's like, Oh, yeah, yeah, you're right. And it's like, OK, can you take this red pen and cross that out, please? And she said, Oh yes, thank you. Thank you. It's thanking me. And it got to be just so comical. It was like, Did you even read this report or is this just literally the one you do in every case? And then she ended up striking through her report by the end. Speaker 1 [00:30:20] That's a great exhibit. Yeah. Speaker 4 [00:30:23] Like you said, Speaker 1 [00:30:24] I think that's awesome. That's that's the general goal, right? You want to make their expert look like a clown. Speaker 2 [00:30:29] And so the fact that they Speaker 1 [00:30:31] had giving wrong opinions, they don't know what they're talking about. They're biased, hired to do this same thing every single time. And each expert's different, and some are going to be more credible than others, but that's the ultimate goal. Speaker 3 [00:30:44] And what did you do something like that and hold it there at work with? Speaker 1 [00:30:47] Has the accountant ready? It just shows how much they're really putting into it and the efforts that the defense is going into to try to hurt your innocent client. Speaker 3 [00:30:57] So you're right, I had three or four experts in one case, all with the Speaker 2 [00:31:07] methodology Speaker 3 [00:31:08] that I was getting them to call by their own last Speaker 2 [00:31:11] name because no one Speaker 1 [00:31:12] else uses it Speaker 3 [00:31:13] enough for four straight depositions in this Speaker 2 [00:31:16] case. I was Speaker 3 [00:31:17] getting them to effectively call Speaker 2 [00:31:19] it the Caputo Speaker 3 [00:31:20] methodology. Speaker 2 [00:31:22] Never seen it in Speaker 3 [00:31:22] the book a textbook. Never learned it. No one knows of it. No one uses it. It's just their own. And they started referring to it as as their own methodology as well. Speaker 2 [00:31:34] And that stuff Speaker 3 [00:31:34] is not only fun, but it's great for the motion to strike. Speaker 1 [00:31:38] Yeah, that's I think the expert witnesses cross-examine Speaker 2 [00:31:41] is why we went Speaker 1 [00:31:42] to law school or at least a big part of it. It's just so much fun, especially when you're working on cases you believe. And I think this is also really important when you're selecting your experts is that we try to be very careful to select. Experts are going to give honest, credible, supportable opinions, which means they've usually worked for the defense as well. So you want to be careful about hiring an expert that only does one side of the beat because you have some credibility issues. And also, I look at our job as trawlers is to bring out the truth of the case. So to really successfully attack an opposing party is expert. You have to believe that they're not credible. And if that's the case, you're going to be out of here, why they're not credible. And really, this is where you need to put your time and research and effort. Prior depositions that they have conducted talk to friends that they have worked with, read the papers that they have handled. Well, Joe, now we're working on a case recently where an expert witness was testifying that the type of testing that our client got was not credible or valid. And it turns out they had that same type of facility in the hospital they worked at. So they're saying this hospital is ripping people off in their own report, which is insane. And so there's a lot of fun you can have with that. And I think that's where you want to put your energy and Speaker 2 [00:33:01] effort in that Speaker 1 [00:33:02] research stage. Speaker 4 [00:33:05] All right, so now that we're sort of wrapping this up, you know, does anyone have any additional pieces of advice that they would give to new attorneys Speaker 2 [00:33:16] working with expert Speaker 4 [00:33:18] witnesses for the first time? Speaker 3 [00:33:20] I have one recommendation. It's it's not as broad and sweeping is as advice I typically give, but the read and sign component. When you're retaining an expert, you have two options. When they take the deposition, you can have them waive signature or you can have them read and sign. If you have them reading inside, that's going to be an expensive endeavor. So have them waive their signature. Unless you've been sitting defending that deposition and realize that there are some corrections that need to be made. And you're going to say that a couple of hours of that expert's time Speaker 1 [00:33:56] does a good job like that. Speaker 4 [00:33:58] I would say, especially in cases where you're hiring multiple liability experts, make sure your experts don't contradict each other. So, for example, we had a case, a trucking case, where we hired a human factors expert and an excellent recon. And that's why, again, it was really important to talk to them about what their opinions were because you wanted to make sure they were on the same page, even if it just comes down to how soon the truck driver saw the pedestrian, Speaker 2 [00:34:27] it was a truck pedestrian crash. Speaker 4 [00:34:29] You want to make sure that one is not saying 2.5 seconds and one saying two seconds, because that Speaker 2 [00:34:34] will throw off all the opinions of Speaker 4 [00:34:35] the case. So just be very mindful of that. Speaker 1 [00:34:39] Yeah, I think to my myself would be use your expertize for how you set up your discovery plan Speaker 2 [00:34:47] so that you Speaker 1 [00:34:47] can make sure that you're getting the information you need and what to ask for. And same thing with setting up your depositions. And so it's not just to get their own opinions, but to help Speaker 2 [00:34:56] you figure out what you need to Speaker 1 [00:34:57] get from the other side. You know, and I would just add just research, research, research, you Speaker 2 [00:35:02] know, both your Speaker 1 [00:35:03] experts and the Speaker 2 [00:35:04] opposing parties experts Speaker 1 [00:35:05] and really only hire people that you believe they're giving honest, credible opinions. And the second piece of advice is don't put up with the defense is hogwash. You call that good call. How to integrate that in every conversation you have the rest of the month. David wrote it down in my journal. Speaker 3 [00:35:25] Jack made a very funny joke today. Speaker 1 [00:35:29] Gold Star Tree. Well, this has been really great, everyone. I appreciate you taking the time to chat with us today, and thanks for listening and until next time, goodbye. Thank you for taking the time to listen to this episode of The Effective Lawyer, if you enjoyed this podcast, please take a moment to read it five stars and leave us a review to get notified about new episodes or upcoming or been released. Go to zdfirm.com/podcast. Sign up for our mailing list.