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Deposition Designation Station
 



The role of the litigation attorney is to tell a story to the arbiter in such a way to effectively represents the client's position. Often the attorney requires a person with unique expertise to understand and present technical information in a manner that is understandable to the lay person. Attorneys often determine the need for an expert witness after discovery and after depositions have been taken for many of the witnesses. In many cases this is too late for an expert to most effective. My experience as an expert witness has led me to recommend considering the use of an expert at the following times:

Preparing the Pleadings/Filings

Appropriately, litigation attorneys view a pleading from the perspective of the legal presentation. The purpose of the pleading is to explain the circumstances regarding the client's position in the dispute. In several cases litigation attorneys have used my expertise to help prepare the initial pleadings. In one case my client was suing a software vendor for failing to successfully implement a new warehousing system. The client's IT department provided a list of system problems to demonstrate how the system was not performing adequately and, as part of the pleading the attorneys wanted to include the "punch list" of open software bugs as the failures of the systems and the reasons for the contract breach. I explained to the attorneys that the items on the "punch list" were only the items that had been identified to that point and that, in fact, there were many likely and potential issues that we did not yet know that could come back to hurt us if we continued on that path. I suggested that the contract breach be related to the fact that the warehouse system did not perform the business functions for which our client had contracted and those issues should be defined in the pleading. The attorney accepted these suggestions and built this part of the case around the contract failures.

In another case regarding a HIPAA patient health information privacy breach, the attorney provided the initial pleading for my review prior to the filing. Based on the facts of the case, the attorneys were building their story as one where the defendant health provider's failure to protect a patient's health information resulted in an unauthorized breach of the patient information. Although the attorneys knew that a doctor at the clinic was aware of the breach and didn't act upon that knowledge and that this knowledge exacerbated the clinic's responsibilities, this had not been emphasized in the pleading. I explained the HIPAA regulations and the importance of the provider's knowledge and the attorneys made the applicable changes enhancing the client's negotiating position.

Overall Litigation Strategy

Even in cases where it is likely that the expert may not prepare a report or be deposed, I have found litigators using my expertise to help develop the overall case strategy. In one case, I found that a software value was being promoted by the defendant as very low because of the age of the software. My recommendation was to focus on the costs of having to recreate or buy the software as the value to achieve the same level of functionality. This approach made the story easier to tell for both the judge and jury to understand and avoiding nitpicking issues that would have damaged the client's presentation. In reviewing my report, the judge was able to appreciate the big picture simplicity and found for our client. An experienced expert can help the litigator in avoiding these kinds of strategic or tactical mistakes that make proving the client's position more difficult.

Preparing Discovery Requests

In preparing discovery requests, litigation attorneys are adept at requesting contracts, memos and emails regarding a litigation matter. However, a knowledgeable expert can be helpful in preparing a discovery request. Experts know what documentation or correspondence should be available for a type of work or contract that has been undertaken. For example, an expert will understand how a specific issue or technology should be documented and should be able to identify information that should be provided. Anyone can review what is provided and comment; however, an expert can identify what is not included that should have been included, specify inconsistencies between information and define areas where "fluff" is meaningless to the points being made.

As Examples

  • In one very large case in which I represented a governmental entity against an international systems provider, the contract between the two parties included an implementation workplan that, for all practical purposes, did not draw any attention from the attorneys. However, upon a detailed review of the workplan, it became apparent that there were several errors, inconsistencies and shortcuts taken that even the most inexperienced project planner would not make. Requesting further documentation regarding the preparation of the workplan and its subsequent status reporting demonstrated a clear "reckless disregard" for proper project management processes that became important evidence supporting the government's claims of a carelessly run project.
  • In an intellectual property case regarding the effort made by a defendant in developing a software product, the attorney's failed to request timesheets from the defendant's staff to describe the work tasks performed by the defendant's team. In requesting that the defendant provide this information, as an expert in software development, we were able to demonstrate that the time was spent in understanding the original software and reproducing the original product rather than supporting the claims that the defendant developed its own product.
  • In another systems implementation case, the attorneys' initial focus was on the testing of the system components at the most detailed level that was provided by the system implementer without having the implementer provide documentation related to more comprehensive system testing. Having implemented many systems I recommended that we review materials related to intermediate subsystem testing and overall system functional and compliance testing. This led to verification that the system implementer failed to perform appropriate subsystem and overall acceptance testing and demonstrated why the lack of specific testing was a prime reason for the final system failing when made operational in the field.

Preparing the Expert Report

The litigators are best qualified to understand how the expert's perspective on the case best fits into the legal story being told on behalf of the client. However, the expert is the best qualified to determine the best way to organize the often times complicated and esoteric information from the expert's report in a way that clearly presents that material for understanding by an unknowledgeable arbiter.

Close coordination of the two client advisors is required to achieve this goal. When writing the report, the expert should understand how the expert's opinion fits into the overall theory of the case and direct the expert accordingly. It is important that the expert be able to craft his/her report in a way that enhances the client's position and rebuts the other side's position.

Depending upon the nature of the report we have found that various report writing techniques are applicable:

  • Stay Away from Technical Jargon. Many experts believe the use of technical jargon enhances their standing as an expert. While that may be true if they are conferring with other experts, most arbiters (judges, juries, arbitration professionals) do not understand the jargon and find that wording confusing and are not able to understand nuance and context. We recommend that if the expert has to use jargon, the expert should be careful to define the words being used in the context of their use and should provide relevant examples as often as possible. As an example, when discussing an implementation plan for a software product, rather than simply saying the implementer should provide a project workplan, the expert should effectively describe the components that comprise a meaningful and productive workplan and then describe how the workplan being discussed meets, or fails to meet, the criteria of an effective workplan. This does not mean that the report needs to be dumbed down to fourth grade English; it means that the language should be articulate and communicative without being difficult to understand.
  • Use Simple Sentences. Experts without significant writing experience have a tendency to write in long run-on sentences. These tend to be complicated, confusing and difficult to read. Again, this does not mean that the report needs to be dumbed down; but it should be clear without nuance or ambiguity.
  • Use Non-Expert Examples. While technical material can be confusing, arbiters can easily relate to a parallel description in terms that are technical to the specific subject matter. For example, when I am writing an expert report regarding what went wrong in the process of designing a system or managing a project, I use a parallel analogy of designing a car or defining the plans for a new house or of managing the building of a house and the roles and responsibilities of each person in the process.
  • Length of the Report. Keeping the report short and concise while making sure all relevant topics and issues naturally compete. Litigators have emphasized that an expert witness gets one bite of the apple in writing his/her report. Anything not addressed or referenced in the report cannot be discussed at trial. This is further complicated by the need to prepare the report in its most efficient and easy to understand manner. Based on this, it has been my approach to make sure that I include all issues in my report but try to be as concise as possible. Completeness and clarity are the first priority; conciseness is the next priority.

Negotiating a Settlement

An expert can provide a product assistance in negotiating a settlement. The expert can provide perspectives regarding areas of priorities and value in the context of the settlement discussions. Depending upon the nature of the litigation, an expert has independent and objective perspectives that allow both the client and the litigator to understand the consequences of making certain concessions and the benefits of pursuing specific goals.

As the litigator continues in the settlement discussions, it may be valuable to review specific issues with the expert and have his/her thoughts regarding negotiation strategy and tactics.

Deposition

Litigators and experts both understand the importance of the expert's deposition. Although opposing counsel has control of the deposition through the questions being asked, the expert can influence the direction of the deposition through his/her answers and the tone of the answers. Although the litigator has a story to tell, the expert has a portion of that story to tell that supports the bigger picture.

In preparing an expert for the deposition, it is important for the expert to understand the "big picture" story being told and where the expert's part of the story fits into the big picture. It is important that the litigator and the expert be on the same page regarding the role of the expert's story and how to communicate that story in the deposition.

Of course, opposing counsel is going to try to take the expert off message or get the expert to make comments that contradict the "big picture" story or even the expert's own story-within-the-story. However, if the expert stays alert and stays within the context of the story being told, the client's position is promoted.

Also, good litigators have emphasized that it is important for an expert to avoid making broad generalizations that can come back to haunt the witness in trial testimony or serve as a way of discrediting the witness. I am often asked questions such as "Is it possible ..." and the like. I have to answer that question, with "It is possible, but in my experience unlikely because of A, B and C." The expert needs to be prepared for these types of questions.

Another issue that is important in the deposition is that the expert will likely be asked to explain his/her expert report and defend the findings in the report. This again is where both the litigator and the expert need to be on the same page regarding the expert's story and how it fits into the overall story of the case. Our counsel has advised me that in these instances, it best serves our case to have me describe at length my position rather than just providing brief answers. Obviously, the strategy depends on the case, with the litigator determining if this approach will work for the deposition.

I have also found that opposing counsel will run their expert's story or position past me in the deposition to have me expound on my opinions of their case. In this case, counsel has often advised me to keep my answers to a brief minimum to avoid saying more than I would say on the stand.

Trial Testimony

This is where the rubber meets the road for the expert. To best tell the story and be accepted by the arbiter, the expert must be seen as an expert, be credible and be likable. This is where the expert needs to expound upon his/her background and why he/she is an expert on the specific topic. Our counsel will take the expert through his/her background and establish the expert's credibility to tell his/her story. The counsel builds the expert's position for the case and demonstrates that these issues support the expert's opinion.

The litigator should remind the expert that the expert is speaking to arbiters that know very little regarding the subject about which the expert is opining. The expert needs to avoid using technical jargon, as a way of impressing the arbiter, unless the jargon is well described and defined. One problem an expert can have is that in using technical jargon as a way to impress the arbiter, is that the arbiter can become confused. If jargon must be used, the expert must clearly define the jargon using everyday terms the arbiter will understand.

Another issue is for the expert to avoid traps where the opposing counsel will lead the expert with a series of questions with the idea of getting the expert to make a conflicting opinion. The expert needs to be prepared for this tactic and know when the opposing conclusion fails and be ready to describe that the conclusion fails and why it fails.

It is important for the expert to maintain their composure and demonstrate for the arbiter that the story he/she is telling is logical, plausible and realistic. I have found the most difficult situations as an expert come when the opposing counsel is trying to "confuse" me and get me to go down a different path. That is why it is important for the expert to understand his/her story and how that story fits into the big picture.


James B. Wener, BSME, MBA is a Business Systems Consultant with over 45 years of experience in successfully managing small through very large projects and implementing a large number of computer systems for healthcare, manufacturing, and distribution organizations. A Management Systems consultant since 1991, Mr. Wener has a significant record of accomplishment. His Information Technology (IT) projects include the implementation and management of a wide variety of application software systems.

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