Demolishing the Expert Witness

Marshall B. GrossmanBingham McCutchen LLP

and Expert Witness Malpractice

Roadmap

III. Expert Malpractice

II. Demolishing the Opposing Expert

I. Expert Checklist

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How do you find an expert?

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September 2002S SFTWTM

Expert TestifiesAbout His

Sept. 13 Report (Which Was Not Produced)

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September 2002S SFTWTM

September

Experts from Heaven and Hell

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Expert’s Testimony BEFORE Report Produced

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September 2002S SFTWTM

Expert From Heaven and HellExperts from Heaven and Hell

Expert TestifiesAbout His

Sept. 13 Report (Which Was Not Produced)

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September 2002S SFTWTM

September

…our opinions had crystallized into a final form by then…

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Expert Resumes Testimony About

His Sept. 13 Report

Court Orders Expert to Turn Over Sept. 13

Report; Expert Complies

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Expert’s Testimony AFTER Report Produced

Insert #2 Skorheim.BEFORE.wmv

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Buzz and Woodie

Insert #3 Bucklin.wmv

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Testimony of Financial Expert

Q: How confident are you, sir, of the numbers that you used in arriving at your unjust enrichment analysis?

A: Less confident than I was when I walked in here.

Q: Have you ever before in your entire career come out of a deposition less confident than you are now with respect to the conclusions you reached on this assignment?

A: No.

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Who hired me?

Insert #4 Korvaleva.Multi.wmv

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Shooker v. The Superior Court of Los Angeles County,111 Cal App. 4th 923

We hold in this writ proceeding that the designation of a party as an expert trial witness is not in itself an implied waiver of the party’s attorney-client privilege. If the designation is withdrawn before the party discloses a significant part of a privileged communication (as in this case), or before it is known with reasonable certainty that the party will actually testify as an expert, the privilege is secure; if the party produces privileged documents or testifies as an expert (such as by stating his opinion), the privilege is waived.

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Experts and Waiver of the Attorney-Client Privilege

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Expert Malpractice

Attorney’s Potential Risks:

Attorney’s Potential Risks:

Expert’s Potential Liability:

Expert’s Potential Liability:

Theory:Theory: Expert has duty to the party who hired

him/her OR to another party if he/she most likely to suffer damage from expert’s negligence

Expert owes a duty similar to that of other professionals in his/her field of expertise

Case dismissal

Waiver of attorney-client privilege

Demonstrating Causation:

Demonstrating Causation:

Loss of the expert

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General rule Limiting liability

Liability to expert or client

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Closing Argument Demonstration of Opposing Expert

Insert #5 Puppet.wmv

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