The Illinois Trial Practice Weblog

An Expert-Related Practice Tip from Deposition Checklists and Strategies

This is just one of the many practice tips that you'll find liberally scattered throughout the eight chapters of my book, Deposition Checklists and Strategies (James Publishing):

§4:255 Practice Tip: What the Expert Did Not Do

Remember to ask the expert not only what he did to prepare himself to render an opinion, but what he didn’t do. Of course, you cannot come right out and ask, “Please tell me what you failed to do in rendering an opinion.” Instead, ask the expert whether he did or didn’t do specific things.

In a pharmaceutical case, ask the expert whether he performed these tasks in order to prepare himself to give an opinion:

• Ask the witness whether there was anything that would have been helpful to him in reaching an opinion, but which he lacked the time to do.
• If the witness answers with a list of things for which he lacked time to do, ask why conducting these steps would have helped him to reach an opinion.
• Ask the expert whether or not he personally examined the Plaintiff. If not, then all his knowledge about the Plaintiff’s medical condition must have come from the medical records.
• Ask the witness whether he read all the medical records. If so, is he confident that he obtained them all? Why? Did he ask the defendant’s lawyers to provide him with any additional medical records?
• Ask the witness whether he performed a search of all the relevant literature about the particular issue. If not, why not?
• Ask the expert whether he consulted with other experts in the field. If not, why not?
• Ask the expert if he reviewed all the documents in possession of the defendant that were relevant to his opinion. If so, who provided him with these documents, and how does he know he reviewed all that were relevant?

In other sorts of products-liability cases, you can ask whether the expert performed all relevant tests, conducted a literature search to determine whether there were other incidents of injury similar to the one that gave rise to the lawsuit, and so on.

For more information about the book, see this brochure at James Publishing (pdf). You can also learn more about the book in the following posts at Illinois Trial Practice--

• "Listing the Chapters in My Deposition Book"
• "A Plug for My Deposition Book: Some Specialized Deposition Outlines"
• "My Coverage of Expert Depositions in Deposition Checklists and Strategies"
• "Listing Some of the Practice Tips in My Deposition Book"
• "More Practice Tips from My Deposition Book"

A Don't-Miss Freebie from the ABA

The ABA Journal has excerpted "Making Your Case: The Art of Persuading Judges," by Justice Antonin Scalia and Bryan A. Garner.

The excerpt can be found here; a link to the book itself is here.

Meanwhile, there is an interesting article by Dahlia Lithwick about the book in Slate: "Justice Antonin Scalia is persuadable. Or he finally thinks you are."

The ABA Journal excerpt is in two parts, brief-writing and oral argument. To round out this post, here's a representative quote from part one--

Clarity is amply justified on the ground that it ensures you'll be understood. But in our adversary system it performs an additional function. The clearer your arguments, the harder it will be for your opponent to mischaracterize them.  Put yourself in the shoes of a lawyer confronting an opposing brief that is almost incomprehensible. You struggle to figure out what it means--and so does the court. What an opportunity to characterize the opposing argument in a way that makes it weak! This can't happen to you--your opponent will not be able to distort what you say--if you are clear.

For more about legal writing on this weblog (one of my favorite topics), see the "Legal Writing" category.

Class Actions, Post-CAFA

This month's Trial magazine has news from a March conference at the Benjamin Cardozo School of Law called "Justice and the Role of Class Actions." A quick summary--

• Class actions are "evolving, not dying." If the Class Action Fairness Act (CAFA) was supposed to bring an end to class actions, it hasn't.
• Class actions "should not be regarded as ideological battles" between the plaintiffs' lawyers and big business, since companies can use class actions to "shut down future litigation and control costs."
• Cases about arbitration continue to work their way toward the Supreme Court, which so far hasn't accepted cert on the issue of whether companies can force consumers to "waive [their] right to participate in class actions."
• Another way to frame the same issue: can states prohibit companies from banning class actions in their contracts, or does the Federal Arbitration Act preempt such state laws?
• According to a representative of the defense bar, plaintiffs' lawyers have been creative in trying to "circumvent Rule 23 preponderance of the evidence requirements," for example, by submitting statistical proof "to try and get around the fact that each case is different."

For more, see page 78 of Trial magazine, which isn't available online without a membership. Or see an old post from Legal Underground, free without a membership: "Thinking Out Loud About the Federal Class-Action Bill."

Motion Hearings: Listening to the Judge

Some judges don't say very much at motion hearings. When they do, however, make sure you're listening to them.

Last year, I saw a judge interrupt a lawyer with a comment. As often happens at a motion hearing, the judge was hearing about the issues for the first time. He was clearly wondering if he was understanding the lawyer. The judge was also a little ahead of the lawyer, and he proposed what he thought was the lawyer's best argument.

As it happened, the judge had it exactly right. But the speaking lawyer was so focused on his own presentation that he ignored the judge. The judge took it as a sign he was on the wrong track. When the judge spoke up again, he was focusing on the wrong issues, some irrelevant considerations that favored the other side.

The speaking lawyer had lost the judge and wasn't going to get him back. The correct way to handle this situation is easy. When the judge speaks, listen. Next, give him some feedback. If he's understanding your point, let him know. If he's not, tell him why not.

It's just basic communication, I suppose, but it's easy to overlook when you're deep into the outline of your own argument.

Six Tips for Improving Your Direct Examinations

Here is a basic blueprint for putting together a direct examination. The tips are basic, but worth remembering--

• Find out what information you want to elicit. The rest of these tips deal with technique; this tip deals with substance. You're presenting the witness at trial in order to prove facts you need to make or defend your case. Knowing which facts will be presented through a particular witness is the key to a good direct. You can't pull it off without a thorough understanding of your case. Make a checklist of the facts you're using the witness to prove. Keep the checklist handy when you're presenting the witness; don't hand the witness over for cross-examination until you've checked all the items off the list.
• Prepare the witness. Make sure you're on the same page about the facts you want to elicit; make sure that the witness is going to say what you expect him to say. But don't commit yourself to particular questions, and don't let the witness develop scripted answers. If the direct examination seems too stiff or practiced, the witness will lose credibility. You want the direct to seem spontaneous. See "A Direct Examination Tip from Geoffrey Fieger."
• Think about the questions you'll ask. If you're experienced enough, it will be sufficient to simply assemble the checklist mentioned above. Keep your questions short, and make sure they'll allow the witness to tell his story in a logical and clear way. Except for preliminaries, you can't lead. Make use of headline-type questions that announce both to the witness and the jury where you're headed next, e.g., "Now I'm going to ask you a few questions about the morning before the accident, okay?"
• Be prepared to handle objections from your opponent, both to the form and substance of your questions. If your opponent objects to a leading question, use the tip found in  "An Easy Way to Fix a Leading Question." You should also be prepared for objections about admissibility. Run the direct examination through in your mind and try to figure out when the objections will come and how you are going to deal with them.
• Think about your opponent's cross-examination. If there are bad facts that worry you, consider revealing them yourself during your direct.
• When the time comes for direct, give the witness enough room in the way you develop the testimony that he'll seem like a person, not a robot. The witness is the star during direct, not the lawyer. But if the witness is having trouble keeping on point, reel him in. "Thanks for your answer, but I'm asking a slightly different question. . . " Look for signs that the witness is confused; if it happens, back up and begin again.

For other tips about direct examination, see the posts on this weblog in the "Direct Examination" category.