EXPERTS – WHO, WHAT, WHEN, WHERE & WHY

Tuesday, June 5, 2018

Location: CAALA Conference Center

Networking: 6:00pm - 7:00pm
Program: 7:00pm - 8:00pm
MCLE: 1 Hour Credit

Speaker:
Alan Van Gelder, Esq.
Greene Broillet & Wheeler

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 EXPERTS:
WHO, WHAT, WHERE,
& WHY
BY ALAN VAN GELDER
GREENE BROILLET & WHEELER LLP

 1. WHAT IS AN EXPERT WITNESS?

 2. DO YOU NEED AN EXPERT?

 3.
WHAT TYPE OF EXPERT DO YOU
NEED?

 4.
HOW DO YOU FIND THE RIGHT
EXPERT?

1
 5.
WHAT DO YOU DO ONCE YOU
HAVE AN EXPERT?

 6.
WHAT DEADLINES AND OTHER
THINGS DO YOU NEED TO WORRY
ABOUT?

 7.
WHAT DO YOU DO ABOUT
DEFENSE EXPERTS?

WHAT IS
AN
EXPERT
WITNESS?

2
 EVIDENCE CODE 720

(a) A person is qualified to testify as an expert if

he has special knowledge, skill, experience, training,
or education sufficient to qualify him as an expert on
the subject to which his testimony relates. Against
the objection of a party, such special knowledge,
skill, experience, training, or education must be
shown before the witness may testify as an expert.

DO YOU NEED AN EXPERT?

NEED VS. WANT

CASES THAT REQUIRE EXPERTS
EVIDENCE THAT MUST BE
PROVIDED BY AN EXPERT
DAMAGE CLAIMS THAT NEED
EXPERT TESTIMONY

DO YOU
NEED AN THE THE
THE BAD
GOOD UGLY
EXPERT?

3
 WHAT TYPE OF EXPERT DO
YOU NEED?

RETAINED EXPERTS

NON-RETAINED EXPERTS

WHAT TYPE OF EXPERT DO YOU NEED?

PROS AND CONS OF

NON-RETAINED EXPERTS

POTENTIAL LIMITATIONS
ON TESTIMONY

SOME TYPES OF NON-

RETAINED WITNESSES:
WHAT TYPE • Treating Medical
OF EXPERT Professionals
DO YOU • Police Officers
NEED? • Supervisors/Co-Workers
• Eye Witnesses
• People Hired to Clean Up
the Mess

4
WHAT TYPE OF EXPERT DO YOU NEED?

PROS AND CONS OF

RETAINED EXPERTS

WHAT TYPE OF EXPERT DO

YOU NEED?

USING BOTH
NON-RETAINED AND
RETAINED EXPERTS

WHAT TYPE OF EXPERT DO

YOU NEED?

LIABILITY EXPERTS

DAMAGE EXPERTS

5
 TYPES OF LIABILITY EXPERTS
•Accident Reconstruction
•Mechanical Engineering/Product
Design
WHAT
•Human Factors/Visibility/Safety
TYPE OF •Electronics/Computer Forensics
EXPERT DO •Property Management/General
YOU NEED? Contractor/Architect
•Traffic Engineer/Civil Engineer
•Medical/Bio-Mechanical
•Lawyers
•Standard of Care Experts

WHAT TYPE OF EXPERT DO

YOU NEED?

PERSONAL INJURY
DAMAGES:
ASSEMBLING THE TEAM

1. MEDICAL
PROFESSIONALS FOR
THE
THE INJURIES:
DAMAGES
TEAM •Physical
•Neurologic
•Emotional

6
 2. VOCATIONAL
THE REHAB/LOST EARNINGS
DAMAGES
TEAM 3. LIFE CARE PLAN
4. ECONOMIST

WHO DO
YOU ASK?
HOW DO
YOU FIND
THE RIGHT
EXPERT?
WHERE CAN
YOU LOOK?

HOW DO YOU FIND THE RIGHT

EXPERT?

THINGS TO ASK WHEN

INTERVIEWING AN
EXPERT

7
HOW DO YOU
FIND THE RIGHT
EXPERT?

LOOK OUT FOR RED FLAGS

HOW DO YOU FIND THE RIGHT

EXPERT?

MAKE SURE YOU HAVE

THE EXPERT RUN A
CONFLICT CHECK

WHAT DO YOU DO ONCE YOU HAVE AN EXPERT?

THE LIFE CYCLE OF AN EXPERT IN

THE CASE
1. Consultant/Pre-Designation
2. Designation
3. Expert Discovery/Deposition
4. Trial Testimony

8
 WHAT DO YOU DO ONCE YOU HAVE AN EXPERT?

1. Communicate With Your Expert

2. Find Out What Your Expert Needs
3. Get Materials to Your Expert
4. Does Your Expert Need to Talk to
Other Experts?
5. Pay Your Experts

Oral and Written Communication

Materials Provided
COMMUNICATING
WITH EXPERTS
Materials Not Provided

Methods of Providing Materials

Declarations and Reports

CERTAIN THINGS TO CONSIDER

PRE-DESIGNATION

1. Vehicle and Site Inspections

2. Testing
3. Examination of the Client
4. Friends and Family Interviews
5. TBI Issues

9
WHAT DO YOU DO ONCE YOU HAVE AN EXPERT?

USING AN EXPERT DECLARATION

TO OPPOSE SUMMARY JUDGMENT

1. Pros and Cons

2. What to Do and Not to Do
3. Out of State Expert Declarations

THE EXPERT DESIGNATION

When Do You
Why is It What Does it
What is It? Need to Submit
Important? Need to Say?
One?

What is a
What Happens What Happens
Supplemental
After You If Something
Expert
Submit One? Goes Wrong?
Designation?

STEP 1 – THE EXPERT

DESIGNATION DEMAND

NO DEMAND - NO DESIGNATION
NO DESIGNATION - NO EXPERT DISCOVERY
ONE DEMAND BY ANY PARTY MEANS
EVERYONE DESIGNATES
THE PROS AND CONS OF GOING “COWBOY
STYLE”

10
STEP 1 – THE EXPERT DESIGNATION DEMAND

DEADLINE TO MAKE THE DEMAND

10 Days after initial trial date is set or 70
days before the trial date, whichever is
later.

IF YOU MISS THE DEADLINE YOU NEED

RELIEF FROM THE COURT OR A TRIAL
CONTINUANCE THAT ALSO CONTINUES
EXPERT RELATED DEADLINES

STEP 1 – THE EXPERT DESIGNATION DEMAND

WHAT DOES A DESIGNATION DEMAND

LOOK LIKE?

11
STEP 2 – PREPARING THE DESIGNATION

ALL PARTIES HAVE TO DESIGNATE ON THE

SAME DAY
DEADLINE – 20 DAYS (Extended by Mail) or 50
DAYS BEFORE INITIAL TRIAL DATE
WHICHEVER IS LATER
DO NOT MISS THIS DEADLINE

STEP 2 – PREPARING THE DESIGNATION

DECIDING WHO YOU NEED AND WANT TO

DESIGNATE AS EXPERTS

DESIGNATING YOUR CLIENT AS AN EXPERT?

THE PARTS OF THE

DESIGNATION
STEP 2 – •The Designation
PREPARING
THE
•The Attorney
DESIGNATION Declaration
•Resumes and
Reports

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 THE DESIGNATION

MUST IDENTIFY ALL RETAINED AND NON-

RETAINED EXPERTS AND THEIR CONTACT
INFORMATION

IF YOU DO NOT PROPERLY IDENTIFY THE

WITNESS ON THE DESIGNATION, YOU MIGHT
NOT BE ABLE USE HIS/HER EXPERT
OPINIONS AT TRIAL

SOME DESIGNATION LANGUAGE

SOME DESIGNATION LANGUAGE

13
 THE ATTORNEY DECLARATION

1 2 3 4 5
Identification of the Type of Opinions Pledge that the Pledge that the How much the
Retained Expert that the Expert is expert will appear expert will be able expert charges for
and Qualifications Anticipated to Offer at trial to meaningfully sit time in deposition.
for deposition prior
to trial.

THE ATTORNEY DECLARATION

Must provide “general substance” of the expert’s expected

testimony
Not a Detailed Report
Enough detail to allow the defense to determine if they need
a supplemental expert, whether they want to depose your
expert, and how to prepare for cross examination at trial.
Make it Broad
Don’t Try to Hide the Ball and Risk A Defense Motion

SOME EXAMPLES

Mr. Expert may be called to testify regarding safety aspects

involving the Defendants’ property, specifically the roof and
the skylight where the subject incident occurred. In addition,
he may be called upon to testify regarding the accident, the
role the skylight and Defendants’ conduct had in causing the
accident, the design and/or maintenance of the skylight, rules,
codes, and/or engineering standards in connection with
skylights, and also provide testimony in response to
Defendants’ experts.

14
 SOME EXAMPLES

Ms. Expert may be called to testify as to issues related to liability

and causation, including but not limited to safety, human factors,
warnings, cognitive processes, the intersection between
engineering, safety, and human factors, the conduct of the parties
in this matter as it relates to the subject skylight and other areas
of her expertise. She will also respond to Defendants’ experts.

SOME EXAMPLES

Dr. Expert may be called to testify regarding medical issues

relating to causation and damages, including but not limited to
damages sustained by Plaintiff as a result of his injuries, pain and
pain related issues, future care and treatment necessary for
Plaintiff as a result of his injuries, the reasonable costs associated
and other areas related to her expertise. Dr. Expert may also be
called upon to respond to the testimony of Defendants’ experts.

SOME EXAMPLES

Mr. Expert may be called to testify concerning the damages issues

in this case including but not limited to a calculation of Plaintiff’s
medical expenses (past and future) and the Plaintiff’s past and
future loss of earnings/earning capacity claims. The economist
may also be called upon to respond to the testimony of Defendants’
experts.

15
 THE ATTORNEY DECLARATION

ATTACH RESUMES
PROVIDE TAX ID NUMBERS
IF REQUESTED, ATTACH
DISCOVERABLE REPORTS AND
WRITINGS THAT EXIST AS OF THE
TIME OF THE DESIGNATION

WHAT HAPPENS AFTER YOU DESIGNATE?

1. EXPERT DEPOSITIONS
2. SUPPLEMENTAL EXPERT
DESIGNATIONS

SUPPLEMENTAL DESIGNATIONS

1. WHEN ARE YOU PERMITTED TO

SUPPLEMENT?
2. DO YOU ACTUALLY NEED TO SUPPLEMENT?
3. 20 DAYS AFTER THE FIRST DESIGNATION
4. SAME RULES FOR ORIGINAL DESIGNATION
APPLY TO THE SUPPLEMENTAL
DESIGNATION

16
 EXPERT DEPOSITIONS

WHAT NEEDS TO BE DONE TO GET YOUR

RETAINED EXPERTS READY FOR DEPOSITION

DEALING WITH THE SPECIAL HELL OF

SCHEDULING EXPERT DEPOSITIONS

COMMON IMPROPER DEFENSE ARGUMENTS

EXPERT DEPOSITIONS

PRODUCING THE EXPERT’S FILE

THE THREE DAY RULE

California Code of Civil Procedure 2034.415: No later than three
business days before deposition the expert must produce any
materials or category of materials, including any electronically
stored information, called for by the deposition notice.

WHEN THINGS GO WRONG

1. DO NOT PANIC
2. WITHDRAWING AN EXPERT BEFORE
DESIGNATION
3. WHEN YOUR EXPERT NEEDS A DO-OVER
4. WHEN YOUR EXPERT SAYS SOMETHING STUPID
IN DEPOSITION
5. WHEN YOUR EXPERT SAID SOMETHING STUPID
IN A PRIOR DEPOSITION

17
 YOUR EXPERT AT TRIAL

1. NEW MATERIALS TO REVIEW FOR TRIAL

2. DEMONSTRATIVE EVIDENCE PREPARED FOR
TRIAL AND DISCLOSURE TO THE DEFENSE
3. PREPARING YOUR EXPERT TO TESTIFY AT TRIAL
4. LODGING THE ORIGINAL TRANSCRIPT
5. DEALING WITH MOTIONS IN LIMINE AND 402
HEARINGS

DEFENSE EXPERTS

1. DEFENSE MEDICAL EXAMS

2. NOTICING DEPOSITION
3. GETTING THE FILE
4. TO VIDEO OR NOT VIDEO?
5. WHO SHOULD READ THE DEFENSE DEPOSITION?
6. WHEN THE DEFENSE EXPERT SAYS SOMETHING
STUPID

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