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not your old buddy. Don’t socialize with your experts unless you won’t mind if a jury hears about it. Talk to your expert about how they will tab, highlight, or annotate records since opposing counsel will often ask about such things. Sixth, give the expert an opportunity to sign off on your


expert disclosure. Tis will avoid a line of cross-examination designed to show that you drafted your expert’s opinions before the expert, in fact, gave them to you.6 Seventh, thoroughly disclose the expert. When I have a


treating physician (arguably a hybrid fact/expert witness) I still disclose all of their potential opinions. For example, an opinion about whether plaintiff ’s bills are fair and reasonable is arguably a forensic opinion because it is not one which the physician would formulate during the ordinary course of treating the patient. Disclose it and other such opinions that you need to make your case.7


I also state that the disclosure incorporates


any deposition transcript of the expert generated in the case. Although I have seen judges allow defense counsel to get away with disclosing far less about their expert’s opinions, and the bases therefore, than I believe Maryland Rule of Civil Procedure 2-402 (g) requires, I still fully comply with the Rule. Again, why fight an avoidable exclusionary battle. Be prompt. You may have to wait for an hour or more to


see your expert (always bring additional reading material to meetings with doctors), but do not make him wait. He could express his displeasure by harming your client’s case. Similarly, unless there is something improper about the expert’s charges, always pay the expert on time. I have heard too many experts complain about getting stiffed by plaintiff ’s counsel. When this occurs, it hurts us all.


III. Preparation for Testimony: Deposition and Trial


a. Generally Meet with the expert. But before you do so, gauge your


expert’s level of forensic experience. Undoubtedly, the length of your meeting should depend in part on the expert’s level of experience with testifying. Some attorneys I know who use out-of-area experts have been successful in preparing them for testimony using videoconferencing. If you do this, make sure your experts have an identically paginated set of records so that you can literally be on the same page during the prep session. Focus on the expert’s methodology and how he or


she can best teach it. Review the key opinions – and bases therefore – that you need to make a prima facie case. Talk about demonstrative aids and exhibits. If the case warrants the expense, get your expert involved in preparing an illustration or diagram. Tis should maximize your chances of being allowed to use the demonstrative aid at trial. Have your clients save any hardware that has been inserted into their bodies, or rehabilitation devices (e.g. braces, casts, TENS units) they have used, so that the expert can discuss it. Getting the expert off the witness stand and in front of the jury should maximize his or her presentation. In certain cases, it will be essential that you review the law: both what it is, and what it is not. I once had carefully reviewed the law and jury instructions with a premises security expert to ready him for his deposition. Opposing counsel asked him, over


6 I had a case against a particularly crafty defense attorney who did not date his enclosure letters to his experts. I am convinced that he did this to mask the fact that he had filed his Expert Disclosure providing the experts with the case materials. Unsurprisingly, at deposition his expert claimed ignorance about when he received the materials. 7 Why fight an avoidable exclusionary battle?


my objection, whether he thought a management company for an apartment complex had a duty under Maryland law to ensure its tenants’ safety (several Maryland cases state that this is not so). I was mortified when my expert replied affirmatively. Te ride back from New Jersey was long indeed. Don’t hang your expert out there. In other words, don’t


push a weak-minded expert into giving you a dubious opinion that will make the expert look bad. While this tactic might yield some ammunition for a settlement, if the case doesn’t settle, it can be harmful at trial and may haunt the expert in later cases. Be mindful of Daubert (if in federal court) or Reed/ Frye (if in state court). Tese cases, and their progeny, set forth the standards under which judges will review the sufficiency of your expert’s testimony. An analysis of these cases is beyond the scope of this article. If you want to use a Learned Treatise at trial to bolster


your expert’s opinions or attack the opposition expert, review it with your expert so he is comfortable testifying that it is both acceptable and reliable. See FRE 803 (18).8


Equally


important, make sure there is nothing in it that will harm your case. Also, find out if your expert will concede that other treatises are authoritative. If he is going to testify about an issue that some experts disagree about (e.g. how much physical therapy is reasonable), ask him if he’s ever given a contrary opinion on that issue. If your expert will testify that your client’s bills are fair, reasonable, necessary and causally related to the occurrence from which your case arose, probe the basis for this opinion to make sure it won’t be struck.


8 Te Maryland analog, MRE 5-803 (18), is identical. Continued on page 19 Trial Reporter / Summer 2009 17


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