Nicholas A. Miller
Nicholas Miller a MEC Associate is a consultant specializing in the areas of accident reconstruction, failure analysis, design, testing and human factors. He holds a masters degree in science.
With increasing frequency, attorneys are required to cope with litigation involving technical information. In many cases, an attorney will rely on information and analysis provided by an expert in a specific field. As such, the question arises: what should an attorney expect from an expert?
The expert should be the "technical resource" for the case. As a technical resource, the expert must not only be capable of being qualified as an expert witness in the specific case at hand, but must be versatile enough to provide the attorney and the client with counsel on a wide range of technical aspects relative to the case. Providing the necessary experience, testing or research needed to expose all the avenues available for recovery is a must.
An incentive mind is important for providing the client with alternative approaches that the designer, agency, or manufacturer could have or should have taken to avoid the possibility of foreseeable mishaps.
Finally, and of major importance, is the ability to communicate. The expert must, first of all, be able to communicate with the attorney. The expert must also understand the case and the client’s position, and be able to communicate regarding the technical attributes of the case. Based on personal experience and knowledge of the subject, an expert should also be able to communicate the approach the opposition is likely to take. Most important is the expert’s ability to communicate the very intricate and technical details of the case in simple lay terms so that they can be digested and understood by the judge and/or jury.
Competence
Assume for a moment that the case at hand involves a one vehicle automobile accident in which there are no survivors. The vehicle was severely damaged and a vehicle defect is suspected because of a failed tie-rod that was observed by the wrecker operator. The first thought might be to look for a metallurgist and have the failed part analyzed in an attempt to determine whether the failure occurred as a result of the accident or prior to collision. Any qualified metallurgist can provide that opinion and would undoubtedly be qualified as an expert in the case. More often than not, that one part will not be the only evidence available.
In such a case, it might be more appropriate and economical in the long run to find and retain a mechanical, automotive or safety engineer who has a strong background in accident reconstruction. Such an expert should provide the necessary expertise to render at least an initial opinion on the specific part in question. A background in accident reconstruction and vehicle design along with a familiarity with vehicle componentry and design allows a broader based expert to discover less-evident component failures. Dynamic effects and highway design faults. For example there may be another failure that clearly demonstrates that the tie-rod fails as a result of the collision or there might be some defect in the handling characteristics of a vehicle that makes it unsafe in evasive maneuvers.
Should the failed tie-rod become the issue and very specific metallurgical analysis be needed, an analysis could be directed, evaluated and interpreted by the broader expert. This simplifies the task for the attorney and increases the likelihood of obtaining the necessary specific information. The choice of an expert critically affects the attorney’s opportunity to develop or expand the theories of the case.
The expert should be utilized as a technical counselor. Providing the expert with all the theories rumors, depositions, inquiries, and any other information available can provide a resource for searching out and evaluating possibilities that could be valuable to the case.
A word of warning here: providing technical consultation is the expert’s duty: providing the answer wanted is not. If the technical facts and attributes do not support the theory, the attorney must be prepared to accept that opinion. At the same time an expert with an inventive mind and broad experience may be able to discover an approach that has been overlooked or not considered. Failing all else, the information provided by the expert will warn the attorney that he should seek the best settlement possible.
There are situations where nothing failed but the driver or where the product was unforeseeable misused or there was a defect. It’s better to know that before investing substantial time and resources than to discover it in the courtroom as the "experts" testimony goes up in smoke and the opposition’s expert puts the case to bed with clear, accurate, well communicated testimony.
Technical consultation that can be provided by the expert also includes questions for interrogatories, questions for witnesses in depositions, and questions for witnesses in the courtroom. It should also include evaluation of testimony and the provision of questions for cross-examination or redirect examination. The expert is the attorney’s technical advisor, but must maintain at all times an air of independence. It must be clear to the judge and the jury that the opinion being offered is independent and not the opinion from a member of "the team". It is for this reason that many experts prefer not to sit at counsel’s table during the trial. Caucuses held in the anteroom are always more complete and less susceptible to misinterpretation.
Innovation
Innovation is a key quality in the selection of an expert. It is the expert’s inquisitiveness that can provide the attorney with not just one but several technical reasons for the occurrence, alternatives that would have avoided the mishap, and the approaches available to the defense.
The expert’s inquisitiveness, ingenuity, and perseverance can be invaluable in the early stages of the case and become even more important when the evidence is skimpy. A recreational outboard boat with a family aboard suddenly flipped over on a calm day. The father drowned. Preliminary investigation disclosed that a small pad eye to which the steering cable was attached had pulled loose from the engine. Was this the cause or the result of the accident and why did it occur. The primary evidence consists of an inaccurate Sheriff’s report with polaroid photographs and a Coast Guard report written by an investigator who was never on the scene. An expert is needed who can combine experience, some testing and research, and that skimpy evidence and reach a solid technical opinion relative to the case.
The child shot by his nine-year-old buddy with the pistol that he found in his dad’s dresser drawer wasn’t an act of violence nor was there a physical defect in the gun. It operated exactly as designed and it was even a single action pistol (it couldn’t be fired by simply pulling the trigger). The hammer was pulled back, the trigger pulled and the gun went off. The obvious opinion by a gun expert could well be that no defect exists, but an engineer with a strong background in safety, human factors and mechanical design will recognize the predictability of a child playing with and accidentally discharging it.
In recognizing this weakness an inventive mind immediately turns to the development of a simple hammerlock that can be quickly manipulated by an invention requires an inquisitive and inventive mind coupled with a knowledge of the motor skills and the anatomy of humans, mechanical design, manufacturing techniques, and handgun use. That combination of skills may be hard to find in an expert, but the result is a simple and obvious solution that a jury understands and believes should have and could have been a part of the original design.
In the above example, it is important to note the criteria of not limiting usefulness and avoiding major cost increases since these would both be available defenses to a handgun manufacturer. A handgun used for self-defense must not only be safe to store, but quick to use in an emergency situation. These are obvious attributes for both handguns owned by consumers and those carried by law enforcement officers. The cost of modifications must provide value commensurate with costs so that the competitive position of the manufacturers is not eroded. Ideally the value of the modification would far exceed the cost and actually improve the competitive edge. A child-safe handgun for a modest $5 increase in cost of a $175 handgun is a value that can be recognized by any reasonable and prudent individual.
Technical
The expert must be able to recommend and provide the appropriate research and testing necessary to validate the theories and opinions to be used. The attorney must ultimately decide upon what proof is adequate for the specific case and when the risk of counter-productive evidence is greater than the value of proof to be obtained. The expert, however, however, can offer valuable input for this decision. For this reason familiarity with a wide range of destructive and nondestructive test techniques and data analysis alternatives is needed.
Computer analysis is a valuable aid and should be utilized when it is appropriate. However, the attorney should be cautious of experts who rely totally on computer analysis. Where computers are concerned, garbage in equals garbage out. Unless the input is appropriate and the assumptions are well grounded, the output will be useless in the courtroom, even though it might support the case. A few well-chosen questions about the assumptions and input data can totally destroy the credibility of a purely theoretical computer analysis. A for stronger case can be made by a well-rounded engineer who has spent time at the scene and with the evidence, performed tests, and confirmed the analysis with a computer simulation.
Communication
Technical skills and experience are important but they are useless unless the expert is also highly skilled in the art of communication. The expert must communicate with the attorney, client, opposing attorney, and most importantly, the jury and/or judge. The expert’s first opportunity to communicate is during the initial interview, as the attorney is selecting an expert of true value to have an opinion, but there certainly should be an understanding of the case and expression of confidence in being able to render an opinion. An expert’s experience and expertise should be obvious by the use of examples and the presentation of background.
How simple and clearly is the expert able to explain possible theories and state the technical attributes of the case? The attorney knows much more about the case at this pint than the jury will ever know; If the attorney can’t understand the expert’s approach, the jury will be totally confused. The generous use of specific technical jargon and terminology might be a good indicator or technical expertise or it might just be a smoke screen. In any event, if it is not supplemented with simple, clear, and straightforward English, this may reveal a great deal about the effectiveness of the expert in the courtroom.
Once the available evidence has been examined and theories have been developed and tested, the expert should then be able to clearly and simply communicate and support an opinion to the attorney,. All research testing, and investigation should be done with the attorney’s continued approval and direction, along with a full realization of the costs and the risks. Once again, communication is essential.
The opinion may be expressed orally, in a letter, or in a technical report. The choice of that communication or work product should be that of the attorney. In the event of a written report, many experts provide a draft for the attorney’s perusal. This assures that the final report includes all the necessary attributes from the standpoint of law and avoids any particular sensitive words, terns or phrases relative to the specific jurisdiction in which the case is to be tried The attorney cannot expect to alter the technical opinion. The expert must maintain independence of opinion, but at the same time, remain sensitive to the attorney’s need to try the case.
The opinion must be well supported in terms of the theories, data, and events surrounding it. The attorney can be confident of an opinion based on solid technical evidence and experience especially when it is complemented with questions and theories that the opposing attorney can be expected to use to discredit the opinion.
In the deposition, an air of independence and confidence, not cockiness, should be evident. Here the expert should be able to field the questions without unnecessarily expounding at great length. Answers should be qualified and address the opinion given. The expert should take any demeaning or critical remarks or questions in stride. The expert’s independence, technical competence, high moral standards, and calm control must always be evident.
These same attributes must be evident in the courtroom. Clear, concise, simple language and good eye contact in reading the jury’s understanding of the expert’s answers is extremely important. The jury must be able to understand the testimony and the technical aspects that support the opinion. From a technical standpoint, the expert must obviously be an authority and be clearly confident in the opinion and testimony rendered.
Selection of an Expert
The attributes of a qualified expert are clear, but how does an attorney verify these qualifications prior to hiring one. Personal interviews, wither by telephone or in person, are the best approach. Many listing agencies and expert finding services (such as Maritime & Environmental Consultants) are available to assist the attorney in locating potential experts. The one selected, however, must be one with whom the attorney is totally comfortable, a person with whom a relationship has begun to form and in whom confidence has begun to develop.
An expert who has been involved in "real world" employment c an offer a much wider range of consultation than one who is overloaded with credentials, but has always been in a single discipline or the academic world. In seeking an accurate and solid expert opinion, experts who involve themselves with both plaintiff and defense work as sell as commercial endeavors can afford valuable information in terms of testing theories fan predicting the opposition’s approach.
There are some danger signs that an attorney can be aware of and should cause one to proceed with caution. An expert who offers an immediate opinion that specifically agrees with the attorney’s theory based only on the information conveyed by telephone should flash a warning light. A temptation is to believe that this is just the right expert. It may be that third person will agree with anything the attorney wants to hear. That kind of an expert an attorney does not need. What is needed is an accurate opinion on the technical aspects of the case so that the decision can be made as to how far to pursue the case, based on sound technical and legal evaluation.
Another warning sign is an expert who is an expert on everything. It is desirable to have an expert with a side background of experience not only as a consultant but in industry. At the same time experts should know their limitations.
Beware of the expert who bases everything on some single method of analysis. A competent expert will approach the question from several angles and look for some convergence in the results in order to form an independent opinion. It will be based on experience, observation, the facts of the case, and any analytical or objective data.
Beyond Selection
Once a preferred expert is located there are some actions on the part of the attorney that can assure the undivided attention of the expert relative to the attorney’s case. The attorney must be totally open with the expert, providing all the input available in the best form possible. If depositions are provided all the input available in the best form possible. If depositions are provided, every effort should be made to ensure that they are readable and that any photographs are useful. Photocopies of National Transportation Safety Board of Coast Guard photographs or instant camera photocopies are of almost no value in revealing detail. They become a source of frustration and hinder the expert’s ability to make an accurate analysis.
Fees and retainers should be discussed openly and invoices paid promptly. An expert who is concerned about being paid is unnecessarily distracted from the technical aspects of the case. The attorney should avoid creating fictitious deadlines and unnecessary pressure. Good experts handle many cases simultaneously and have to meet many court appearances, deposition, and discovery needs for many clients. Being pressured unnecessarily makes it more difficult for the expert to drop everything and come to an attorney’s aid the second time.
Well-rounded, technically competent, experienced, innovative, and communicative exerts are few and far between. They will earn their client’s reselect and deserve that same respect from opposing attorneys in depositions and in the courtroom. Objectives to snide, irrational, and irrelevant remarks and question lines will avoid a departure from the technical aspects of the case. These departures could result in unnecessary confusion of the judge or jury and unnecessary distractions to the expert. In addition, the expert’s attitude toward the attorney will be much more positive the next time an opinion is needed.
Full-Service Expert
A full-service expert is one who is technically competent in a specific area but offers a broad background of experience, has an inquisitive and creative mind, and above all is capable of communicating highly technical principles in nontechnical language. The attorney who looks for and locates a full-service expert can proceed with confidence and concentrate on the legal aspects of the case without having to become quasi-expert in order to determine the technical merits of the case.
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