James D. Montgomery is principal of James D. Montgomery & Associates, where he concentrates on civil rights cases, medical malpractice and other personal injury matters. He has been corporation counsel for Chicago and Harvey, Ill.

Robert A. Clifford is principal in Clifford Law Offices, where he practices in aviation, product liability and medical malpractice. He has served on the council of the ABA Section of Litigation and chaired several section committees.

Patricia C. Bobb is principal in Patricia C. Bobb & Associates, which concentrates on medical malpractice and product liability. She is immediate-past president of the Chicago Bar Association and is a director of the National Institute for Trial Advocacy.

Miles J. Zaremski (roundtable chairman) is a partner at Rudnick & Wolfe, where he concentrates on medical malpractice, product liability and other tort law matters. He is a member of the ABA Special Committee on Medical Professional Liability.

Better than textbook advice, the real-life advice of top litigators provides winning strategies for using (and maybe slightly abusing) expert witnesses at trial

In a big city with big law firms and big cases, it’s no small matter to worry about how an expert witness will play to a jury. In a small town with fewer places to turn for experts and advice, it’s an even bigger matter.

These days, how a lawyer selects and handles an expert witness is an increasingly important-and difficult-part of a tort case.

When a lawyer at a major litigation firm in a city like Chicago seeks advice on such things, there are sure to be suggestions throughout the office.

For that type of expertise without leaving the office, the Journal brought together four big-city lawyers with extensive experience using expert witnesses to talk about how they handle the experts.

The twist is that the discussion leader, Miles J. Zaremski, is a civil defense lawyer and the other three - James Montgomery, Robert Clifford and Patricia Bobb - are plaintiffs lawyers. That mix made for some interesting talk:

Miles Zaremski: Just where do you find an expert witness?

James Montgomery: I get hold of the Jury Verdict Reporter and look for a list of cases that involve experts in the area of my case. Then I check with lawyers who dealt with those experts and determine what their views are of them. Then you can go to places like the Association of Trial Lawyers of America, based in Washington, D.C., where you might be able to get some information on experts. You can call fellow lawyers. I also tend to call up an expert I have used in the past and ask who might be interested in doing my case. Or call a university. I find it very easy to get experts nowadays.

Robert Clifford: I try to find the individual or individuals who are the most notable in a given area and deliberately pursue them for their initial opinions about a case without necessarily making a commitment to having them as actual testifying witnesses. We go very slowly and deliberately in pursuing expert analysis of a case even before we solicit expert opinions about a given topic.

I try to find people who are not the known testifiers in a given area and we turn to the books. We turn to the literature. We turn to academia.

As Jim mentioned, it’s not too difficult to get experts nowadays, in part because of the enormous amounts of money that some of them [earn] for their work.

I just took the deposition of an expert witness who is charging my opponent $700 per hour to testify in court. He’s going to make tens of thousands of dollars on a noncontingent basis on this matter, and when someone is earning that kind of money up front, I question their impartiality.

Patricia Bobb: I want to caution people to be very careful about experts who advertise. I think it’s much better to do the scut work and talk to people you known and trust - other lawyers, doctors, other experts in the area - than to rely on an ad somewhere, which people often think is a good way to go. I’m afraid that oftentimes people get burned by those.

That’s not to say that good experts don’t advertise, but that’s one thing that can definitely be a negative for an expert on cross-examination. It’s just something you need to be careful of.

Montgomery: Let me add that I’ve found that instrument called the telephone to be very effective. I will call experts, whether they’re local experts or out-of-state experts. I will put my recorder by the telephone, and I will talk to that person for an hour or an hour-and-a-half until I get the consult, the education that I need, and the understanding of how that expert comes across, and then make a judgment as to whether the person is going to be a good witness or not.

Zaremski: Bob, if the expert charges what you think is a lot of money, does that take away from the value of retaining that expert or the expert’s opinion?

Clifford: I think it takes away from the value of the expert’s opinion when the amount of money that he or she is charging exceeds what most of us might deem to be reasonable, because then their credibility is compromised.

So much of winning a case comes about because of a credibility battle. When a jury has to make a judgment about which direction it’s going to go - and all other things being equal - you have one expert saying one thing and one saying another. How is the jury going to make its judgment and exercise its discretion to find the truth of the outcome? And I say to you, it’s a matter of credibility.

Zaremski: Patty, in addition to getting records to somebody you think you might want to retain, what else do you do to begin preparing an expert?

Bobb: There are really fundamental things about keeping an expert apprised of what’s going on in the course of a case - making sure they have information and talking to them.

It’s also very important to have a relationship with an expert so that he or she can give you direction that will help you develop your case. I always talk to an expert witness before I depose the defendant in the lawsuit, for example.

And oftentimes, if you’re willing to pay for it - which you often are - the expert can help teach you.

So I think the important thing is to establish a working relationship with the experts so you don’t just retain them and then four years later make the phone call, "You’re going to come into court and testify."

Clifford: One of the best ways of getting comfortable with your expert is to play the naive, uninformed person who’s begging for help. I’ve found no shortage of ego in dealing with experts, and it’s my experience that, if you ask them to be teacher, they respond in kind.

Now, the downside is making sure you independently know enough about the given area so you can challenge what your expert is saying, and one way of doing that is to have a secret consultant that you really don’t tell anyone about.

Bobb: I’m still amazed when I see that sometimes lawyers let experts sort of control them. I think sometimes lawyers are not intimated but rather influenced by these experts. You know, "I’m a really important doctor and I don’t have time and I’ve done this 9,000 times. Don’t worry about it. I know what I’m doing." That is the kiss of death.

I prepare for an expert witness deposition as if I’m going to trial. I have all the literature. I have what I want to get for trial and I am ready. And a lot of times experts are surprised by that.

It’s the same thing with our own experts. If I’m willing to pay you for your time, then you’re going to meet with me, and if I say it’s going to take one time or two times or whatever, that’s how long it’s going to take because it’s a business relationship.

Drawing Blood on Cross-Exam

Zaremski: One of the issues that arises during cross-examination of experts is their payment. Do you think that in any way influences a trier of fact, a jury of lay people?

Clifford: Well, it can. It’s a question of how it’s done. If it’s done in the slow-drip way, where it’s the culmination of vigorous cross-examination that has challenged the expert’s opinion in a lot of other respects and then you say to that person, "By the way, your charge per hour for being here today is X number of dollars." If it’s shown throughout the trial that the number is off the charts relative to the rest of the technical testimony, I think it could be very important.

I recall vividly having an expert on cross-examination, and I brought out how much money he made per hour and I was standing next to the jury box - and in Cook County here, the jurors can take notes. Well, one of the jurors wrote down the number in big letters and then nudged his buddy, and they were both grinning to each other, and I kind of chuckled myself and just kind of raised an eyebrow. I think I got some mileage out of that.

Zaremski: I just came back from out East, where we went through some jury focus presentations, and one of the areas was regarding expert testimony. And the comment of these people was, "Why should we pay attention to the experts? They’re getting paid to give their testimony."

Montgomery: My sense of it is that every expert who takes the stand, whether he’s the adverse expert or your own, is ultimately going to tell the jury he’s getting paid for his time, so the jury will know that both of these are paid experts. Unless somebody has an extraordinary fee, then it seems to me that it’s sort of a wash.

I think jurors look at expert witnesses, and they make an evaluation. They’ll evaluate who to believe, and that’s why I think we are careful in selecting and preparing experts who can explain the issues.

Clifford: That’s why the communication skills of experts at times are so very valuable, particularly if they come from the academic community. Many of these people are teachers, so one of my frequent instructions to the experts is to do what you do in a classroom. Whatever you do in your facial expression, your voice inflection, the sincerity of your presentation, your body language, to communicate to people that you’re being honest, credible and forthright, do that with that jury.

Zaremski: I find in my experience that there hasn’t been enough use of Frye and/or Daubert, depending on the jurisdiction that one is in, in the sense that you may be deposing a very credible, well-credentialed, state-of-the-art type of expert and not asking the question, "Well, what are those opinions based on? Can you give me the literature that supports your opinion, rather than your experience?" I think there are not enough attorneys on both sides of the ledger who think in those terms.

[Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), are key decisions on the admissibility of scientific evidence in the federal courts and some state courts.]

Clifford: I have a very cynical view of such remarks coming from learned defense counsel because I’m currently of the opinion that Daubert, in particular, has created a cottage industry of motion activity, particularly in the federal courthouse. It seems that nowadays it’s almost systemically a part of the procedural process before trial that we have to have a Daubert hearing, and it’s become known, for every expert or for every case where there is expert testimony.

So what we’re experiencing on the plaintiff’s side of this is that defense counsel are vigorously pursuing Daubert with what I would deem collateral litigation, collateral motion activity. I’ve yet to see them be terribly successful with this in most of the cases with which I’ve had experience, but they’re nevertheless doing it because it’s a free shot.

That’s one of the things that I think the legal community is rightly criticized about, because litigation nowadays is costing too much and taking too long, and Daubert activity that is not judicious in its assertion is really doing a disservice to the community.

Bobb: The parameters of the Daubert reasoning were really much more narrow, and lawyers have really gone way overboard on the use of Daubert. In the very unusual kind of a case where you have an expert who’s coming from left field somewhere with some opinion that has no basis in anything, then that may be a situation where the use of those kinds of motions and hearings is appropriate. But I think there really is a cottage industry where defense lawyers think they can raise that in every single case, no matter what the expert issues are, and I think it is a waste of time and money.

Zaremski: I guess it would be a matter of perspective on this. From the plaintiff’s perspective, have there been occasions where you might want to challenge the expert for the defense?

Clifford: Well, the direct answer is yes. But I must confess that I’ve yet to try it. My tack thus far has been that, whenever it’s been raised as an issue in any one of my cases, we’ve filed a cross-Daubert motion and the issue somehow seems to go away. I’ve yet to have it go to a full hearing.

Also, I don’t agree with analysis that says Daubert can be asserted simply because an expert is offering an opinion based on experience alone. I don’t think the Supreme Court of the United States ever meant to say anything like that. I think that would be a very narrow interpretation of Daubert.

Zaremski: I will only say that in areas in which we’ve been engaged in recent years, particularly from the mass-tort kind of litigation and individual high-profile cases, that we’ve had a measure of success.

Bob, do you want to just try to make mincemeat out of an opposing expert - I mean really go into areas that tangentially might be irrelevant, though embarrassing, for your opponent’s expert?

Clifford: Cultural anthropologists tell us that throughout the centuries there have been healers and there have been warriors, and I have learned that you can be all the healer you want after you bring them to their knees. So my experience is that a vigorous, disciplined cross-examination is very, very valuable, but only on matters of merit and relevancy that are not collateral to the process.

Any fair area of cross-examination that can be used to undermine credibility is something that you ought to vigorously pursue in a very disciplined way.

Zaremski: Jim, do you believe in really going for the jugular with your opponent’s expert?

Montgomery: I learned a long time ago that cross-examination is the art of the possible. You are not going to get a witness who is an adverse expert to confess that he "done wrong." Therefore, you’ve got to make a disciplined, organized cross-examination of that witness so you can get from him the art of the possible. Because once you winnow down what the true issues are and the true difference are between the experts, then that ought to give you a yardstick as to where you need to focus.

A lot of lawyers talk about pummeling experts. There is no pummeling of experts or anybody else. You cross-examine that witness like an artist, and you do so with a scalpel and not a butcher knife. You draw blood, but you draw it, I think, just as Bob suggested.

Clifford: You’re either undermining his or her credibility as a person, as a witness, or when you’ve got a really good person on the stand against you, you want to undermine the credibility of the substance of what they’re saying.

Bobb: I think a lot of what we’ve talked about today comes back to a major proposition: Jurors have the ability to make credibility decisions. They are smart. They are intuitive.

Many lawyers take that for granted - and many expert witnesses - and they think, "Well, the jury will believe this opinion no matter how ridiculous it is, because after all, I’m an expert." I think jurors are much smarter than that. That’s why I think it’s so crucial to really prepare an expert witness. I think it’s so important to really prepare for cross-examination.

Zaremski: What is so elementary about cross-examination is the logic of human nature. There is some psychology, some human nature about the process.

Zaremski: Jim, how do you view the nature of ethical obligations when using experts?

Montgomery: You’ve got to be sure that you have an expert who is giving an honest opinion that you can support.

I had a civil case arising out of a police shooting of an individual. They did an autopsy. As we were going over the expert’s notes and report and asking questions, he said, "Well, what do you want me to say?"

When you get a guy like that, you’ve got to get rid of him because he’s dangerous. Not only is he being unethical and dishonest, he’s also going to drag you down with him.

Clifford: I’d certainly echo those remarks but add that the ethical issues also stem in large measure from our responsibilities to the court and the civil justice system in general, but, most important, to our clients.

I think lawyers do clients an absolute disservice if they promote a cause of action that is not credible and grounded on a reasonable basis for its merit.

Bobb: There are experts who can be bought very easily and who will say whatever you want them to say. But we have an ethical responsibility to the court and the system, a responsibility to our client, not to participate in that kind of an undertaking with that kind of a person.

But what I’m seeing is that there are some experts out there - and of course, I see them on the defense side - who are making extraordinary amounts of money and will testify, basically, to the same thing in every case. If you have a cervical injury case, for example, there’s one person I’m thinking of who insurance companies will go to, and he’ll always say the same thing: There’s a disc, but it’s not causing any damage, or it was something the person had before the accident.

They’re out there, and they’re being used over and over again. And I guess our job is to try to ferret those people out and show who they really are in front of juries.

Zaremski: When it comes to retention of experts and putting them before the opposing attorney for purposes of testimony, our obligations are to use the highest quality individual, not only on behalf of our client but also to ensure that our profession, our business, is not viewed in disrespect by those looking in.

There are no shortcuts to effective lawyering when it comes to the retention of experts, the preparation of experts, and the submission of experts for examination by the opponent’s counsel.

But even more important is that each of us is a representative of our profession, and thus, our integrity and our honesty and our sincerity are put on the line every time we contact an expert, retain that expert and use that expert to support the position of our client.