The Attorney and the Expert Witness

What are your expectations of an expert witness?

An expert witness is a subject matter expert who possesses special knowledge, skills, experiences, training, or education that allows him to give opinion testimony regarding the facts at issue in a case. [1] In short, the expert’s purpose is to help clarify, define and explain a technical subject matter which a lay person would have difficulty understanding relative to the facts at issue. [2] The expert witness should not be viewed as anything other than a “teacher.” Taking sides or making arguments for one side or the other can raise questions of impartiality. Certainly, the expert is working for the plaintiff or the defense but advocacy is not part of the expert’s parlance. So when retaining an expert, the legal counsel’s view should be to seek detailed and clear explanation of certain facts rather than

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arguments in favor of the facts.

Will the expert testimony fit within the parameters of the judicial criteria for allowing expert witness testimony?

The Colorado Supreme Court in People v Shreck [3] overturned lower court rulings that disallowed admissibility of an expert witness based solely on Daubert [4] criteria. The Shreck Court found that the Colorado Rules of Evidence 702 (governing admissibility of Testimony by Experts) “. . . represent a better standard, because their flexibility is consistent with a liberal approach that considers a wide range of issues.” [5] Therefore, Shreck allows a broader standard of expert witness admissibility compared to the more “rigid” criteria set forth in prior expert witness admissibility cases. [6] The gist of this ruling is to make available, to the trier of fact, subject matter testimony helpful in understanding some of the finer points of evidence.

The Shreck Court provided some definition on “flexibility” by stating that expert witness testimony must be relevant, reliable, and “. . . useful to the jury.” [7] The trial court has broad discretion (the court’s “gatekeeping duty”) in evaluating the propriety of expert witness testimony on a case-by-case basis, which will answer the question of whether the expert witness’s testimony will assist the trier of fact. [8] To legal counsel considering retaining an expert witness, the Shreck thresholds present the standard the expert witness role will play in your litigation. So the engaging counsel needs to assure themselves that the expert witness testimony will be relevant, reliable, and useful to the jury (or judge) before engaging an expert. Will the expert witness testimony help the jury understand the facts better, and is the planned testimony valid? This is the focus that the engaging counsel should determine prior to hiring an expert witness.

While the Shreck Court “declined” to mandate any particular set of facts in its opinion regarding expert witness admissibility, there are some considerations that should be kept in mind. First, an expert is not an advocate. The expert witness must be impartial and their opinion must be based on reliable subject matter standards, which include the applicable profession’s rules of ethics and standards of care. For example, the author of this article is a Certified Safety Professional (“CSP”) [9]. This designation is earned through professional safety experience as well as through rigorous examinations controlled by the Board of Certified Safety Professionals (“BCSP”). The BSCP is formed under the American National Standard Institute. [10] The BCSP has its own code of ethics that its CSP members need follow. [11] Any testimony from a CSP regarding workplace safety not only needs to comply with the safety profession’s rules (OSHA and/or MSHA, for example) but also the expert witness’s professional code of ethics. [12] For the CSP professional this means objective and truthful opinion founded on knowledge of the facts and competence in the subject matter (safety/OSHA/MSHA, etc.) as conducted within the standards of ethics. Therefore, the expert witness must observe his professional practice’s standards for knowledge and competence as well as its ethics code. Case advocacy is left to the legal counsel.

What are the standards that expert witness opinion must follow?

The expert witness opinion must be reasonable. [13] The sole purpose of the expert witness opinion is to help the trier of fact ascertain the truth. The expert witness needs to be cautious when developing and supporting his opinion since counsel and courts know that juries, and possibly judges, tend to rely upon what an expert says. The expert witness must justify his position and conclusions based in the facts presented (through deposition testimony, documents produced and entered into evidence, etc.) and his conclusions must be unbiased and based in facts. In short, the expert witness’s central objective is to provide “. . . adequate, unbiased justifications for their positions.” [14] Again, leave the advocacy to the legal counsel. Straying from the expert’s venue may result in unwanted consequences to the retaining party.

In short, the engaging attorney wants his expert witness to be true to the knowledge of the expert’s profession, not to be a zealous advocate. The attorney’s case is better suited to presenting and supporting his/her arguments with a well-reasoned and fact-supported expert opinion.

Finally, what does the expert witness need from the engaging attorney?

In light of the foregoing, the expert witness needs all substantiated facts related to the case. I’m not implying that an attorney would deliberately omit facts as such conduct would harm the case. Rather, there are facts which the expert may seek that were overlooked, ignored, or the import of which is unknown to legal counsel. Consequently, the expert witness may make factual inquiries differing from those that the attorney considered. (This is not to say that both aren’t headed toward an identical result: an unbiased opinion, well supported by fact and evidence, tied to the appropriate subject matter.) Rather, the expert’s inquiries are simply raised from different viewpoints and needs. In short, the expert witness may request information that the legal counsel simply had not considered previously.

This fact-gathering phase is the point where the expert witness employs his professional knowledge and is merely seeking information that he knows is important in his realm of knowledge. (Remember, the expert witness must comply with his professional ethics rule of being truthful. This translates into being “truthful” and thorough with the facts, laws, and regulations pertinent to the expert’s profession.) Some questions may appear “peculiar” or make no sense but the expert witness is asking those questions for a reason. Each area of expertise follows specific standards and rules, and the expert witness’s depth of knowledge is being exhibited through the questions he asks. So be helpful and answer the questions, and if you don’t know the answers, then seek them through discovery. Such detail(s) may be vital to the expert’s ability to provide a well-detailed and fact-supported opinion.

The attorney must also give “. . . all evidence.” to the expert witness and cannot leave anything out. [15] Omitting evidence to the expert witness risks having his opinion being undermined or excluded. The retaining counsel needs to remember to be patient with the expert witness. The expert seeks information and evidence that he needs to support the engaging attorney’s position and/or arguments. Be prepared to hear the same questions several times. This is the expert witness seeking to be thorough in his work product sought by the engaging counsel.

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[1] J D Porter LLC, Legal Practice, C.R.E. 702, C.R.W. 703
[2] J D Porter LLC, Legal Practice
[3] People v Shreck, 22 P. 3d 68, (2001)
[4] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1991)
[5] People v. Shreck, 22 P.3d, p. 77
[6] People v Shreck, 22 P. 3d 68, (2001), p. 77
[7] People v Shreck, 22 P. 3d 68, (2001), p. 77, citing Brooks v. People, 975 P.2d, 1114 (Colo. 1999)
[8] People v Shreck, 22 P. 3d 68, 77 (2001), citing Campbell v. People, 814 P.2d, 7-8 (Colo. 1991)
[9] The author, Greg Gerganoff, is also admitted to the Colorado Supreme Court and presumably the Colorado Rules of Professional Conduct apply as well.
[10] American National Standards Institute, ANSI/IAO/IEC 17024-standards for personnel certification programs. ANSI is an organization that formulates a variety of standards recognized in the U.S., for example, OSHA, MSHA and other government agencies and in numerous instances adopted by reference into their legal regulations.
[11] BCSP Code of Ethics
[12] BCSP Code of Ethics
[13] Joseph Sanders, Expert Witness Ethics, 76 Fordham L. Rev. 1539 (2007), citing Samuel R. Gross, Expert Evidence, 1991 Wis L. Rev. 1113, 1178
[14] Joseph Sanders, Expert Witness Ethics, 76 Fordham L. Rev. 1539 (2007)
[15] Ethical Considerations in Dealing with Expert Witnesses, Thomas M. Fitzpatrick, 2008, and American Bar Association, Rules of Professional Conduct, 4.1

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ABOUT THE AUTHOR: Greg Gerganoff
Greg Gerganoff, CSP, Esq. and Rocky Mountain Safety Consulting, Inc. provide legal counsel with a conscientious and unusual combination of subject matter expertise (safety, OSHA, MSHA) and legal practice experience. We understand the demands litigation counsel faces in the form of case assessment, discovery and expert witness testimony and the role it plays in their case.

Copyright Rocky Mountain Safety Consulting, Inc.

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.