We live in an ever-increasingly litigious world, surrounded by self-interests vying for a piece of us and some degree of retribution, and often we are totally unaware of what we could have, or should have, done differently. This fire is fanned by a burgeoning population of lawyers, cranked out of the law school machine, in ratios of lawyer-to-population numbers beyond our imagination. We also train, study, and work in jobs that often give us a unique perspective on how something might have been done better, safer, or with the avoidance of the subject consequences. If so, we may be sought out to testify in the ever-intimidating environment of the courtroom. When performing your normal job—say, as a scientist, professional, or supervisor directed to perform routine audits of someone else’s job, for whichever side of an issue you are working on—one of your primary tasks may be defined as a duty to anticipate, recognize, evaluate, document and advise. If you have been asked to appear as an expert witness in a Utah family law case, speak to an experienced Farmington Utah family lawyer.
As an expert witness in the case, you will most likely be given a great deal of discovery material to review. The eventual opinion testimony you will offer at deposition or time of trial will be made up of two portions: (1) case specific testimony, and (2) generic testimony from your background, training, and experience. Whether formally tasked or not, you will examine the discovery materials in light of your expertise and establish your foundation for giving case-specific testimony. A skilled trial attorney will generally give you only those items of discovery that are necessary to your testimony. If you are working for the plaintiff, you will be given the deposition volume of the day of direct testimony and possibly relevant excerpts from the cross-examination testimony. If you are working for one of the defense lawyers, you will only be given that portion of the testimony that is relevant to the defendant in question. In the defense posture, you may also be asked to focus on another defendant’s area of involvement, as your attorney-client is interested in shifting the blame from his or her client onto another defendant’s area of exposure.
Interrogatory Responses
Interrogatory responses are sets of questions that go back and forth between plaintiff and defense counsel to find out facts that are critical to the development of their case. The questions go to the opposing counsel but are answered and sworn to by the parties in the case or by their attorneys. Reading these interrogatory questions and answers can be difficult for the expert witness, as they are worded in “legalese,” which is not familiar to most people.
Most lawyers will attempt to direct or groom even the most experienced percipient or expert witnesses prior to deposition or trial testimony. The more prestigious or financially rewarding the case, the more extensive and time-consuming is the preparation prior to the giving of pivotal testimony. A frequently expressed desire—often a request or even a demand—on the part of both defense’s and plaintiff’s lawyers is that you limit your testimony to the specific response required to answer a question. In deposition or trial, it is called being responsive to the question. More simply, this means that if the question calls for a yes or no answer, that’s all that you should say. Saying more will often elicit the evil eye or a kick under the table. Many questions will be specifically worded in such a manner that the only reasonable answer is yes or no. If the question is not worded in that manner, you are generally free to ramble on with a narrative until someone stops you. Narrative answers to questions are generally frowned upon, by opposing counsel and the court, but can be gotten away with if you first answer responsively with a yes or no and then request of the attorney or the court that you might need to explain that answer. Generally, the explanation is permitted and can be used to clarify a possibly misleading question that has been answered with just a yes or no reply and that might confuse your opinion. If the explanation is disallowed, your attorney can probably rehabilitate your testimony in redirect questioning and cover the issues that were precluded during cross-examination.
Anticipating Questions
It doesn’t take many depositions or trial experiences for the expert witness to begin to understand and even anticipate what lawyers are going to do and say. The who, what, when, where, and why deposition questions are considered easy to deal with, but on occasion these same questions are setting you up for a totally different line of impeachment questioning that only surfaces at time of trial.
Who you are is probed and explored to establish the details of your background and credentials, and also to offer a detailed palette of comparisons from that of the expert on the other side. This paints a scenario of questions to undermine what expertise you profess. When you sit in deposition and hear questions asked that were obviously written by someone knowledgeable in your field, you need to answer with care and respond as if these questions were posed in trial.
What your role is anticipated to be, in this particular case, is a critical area of pursuit by the other side due to the exclusion of testimony that was not discovered during your deposition. Questions that are frequently asked are, “What were you asked to do in this case?” or “Are these all the opinions you intend to offer at time of trial?” These are asked in order to limit your ability to testify on subjects beyond what the inquisitor has asked. A reasonable response would be to indicate that these are your general opinions and you cannot anticipate what might be asked either in direct questioning or cross-examination, nor what the subject of a posed hypothetical question might be. This leaves your attorney with the opportunity to go beyond the questions posed by the opposition’s deposition inquiry.
When you were first contacted for a case can be important. Were you a lastminute addition, or have you been working on this case for some time? This is where your case file and the record keeping you do can be crucial. For each case, there must be only one file into which everything related to that case is contained. Your case file should include time sheets, billing records, e-mail, letters of communication and record transfer, any notes made by you related to anything in the case, and any research or articles you will be relying on when you testify.
Case-specific questions and testimony generally come at the end of either side’s questioning. These are the case-related facts and opinions that go to the end point of your testimony. State what you know of the case facts and evidence, respond with your opinions, and conclude with an affirmative response as to what overall concept you wish to leave with the judge and jury. I often advise attorneys who use me at a trial that their knowledge of the case is far greater than mine, as is their memory. Whenever possible, suggest that case-specific questions be posed in the form of a hypothetical.
Attorney–Client Privilege
A very important facet of expert-witness testimony, which you may only learn by accident, is that anything you say or discuss with the attorney who hires you is discoverable! The protection of attorney–client privilege does not extend to expert witnesses. If the attorney is new to litigation, inexperienced, or semiconscious, you may need to remind him of the discoverability of longwinded discussions on legal theory, and that you don’t need to know this information in order to perform your work.
Another point to remember is that anything you bring into the courtroom is fair game for examination. If you did not bring your file, you cannot be ordered to submit it to the opposing attorney. If the judge can be convinced that you are hiding something in your briefcase, she can order you to turn it over to counsel for examination. Bring to the court only what you absolutely need for your testimony, and nothing more. This type of embarrassment has actually befallen me in trial, and this was a hard-earned lesson. It obviously could have been worse if, at the hotel, a pair of dirty underwear had been inadvertently stuffed into my briefcase and forgotten until this moment of truth.
The deposition is an informal setting in which questions are asked of a witness, and the answers given have the force and effect that they would if given in a court of law. The attorneys present make their objections to what they consider any inappropriate questions. The only difference is that, unlike at the time of the trial, no judge is present to rule on the objections.
If you are a witness for the defense, your deposition will generally be taken by the plaintiff’s attorney. Conversely, if you are a witness for the plaintiff, you will generally be deposed by the defense attorney. On occasion, the attorney who hires you will be asking you questions when doing what is called a perpetuation deposition if you will be unavailable for trial. At the start of the deposition, the court reporter will swear you in by administering an oath to tell the truth and nothing but the truth. Historically, the oath was sworn by placing a hand on a holy book and pledging to tell the truth. This custom has essentially disappeared from the modern deposition or courtroom except where seen in the movies or on television.
Prior to the start of the deposition, a witness will be given an estimate of the time that is to be allotted for the session. An expert deposition can range from under an hour to many days. It has been my experience that the skill of the deposing counsel can be quickly judged by all present when the questioning pattern avoids redundancy and is specific and to the point. In some cases the prolonging of a deposition and extending a trial date can be a form of strategy.
Once all witnesses are deposed and a trial date is set by the court, the two sides eventually go to a series of mandatory settlement conferences. These conference sessions, before a trial judge, are designed to expedite the process and encourage settling a case before the cost and effort of a trial are expended. Without settlement, and with a trial date growing near, a new onslaught of paperwork is submitted to the court in the form of motions. One form of motion that may involve an expert is a motion for summary judgment (MSJ). The MSJ is typically brought by the defendant in a case and essentially declares that the plaintiff does not have a sufficiently strong case to take to trial, and that the defendant should be dismissed. If this motion is granted by the court, the case is over. The plaintiff can oppose this motion, and the basis upon which it is offered, with the aid of a declaration signed by fact or expert witnesses who can contest the MSJ and suggest to the court that the case has a triable issue that must be heard by the jury. If you are asked to prepare, input, or sign such a declaration, take care to ensure that it clearly, truthfully, and exactly conveys your opinions, as it is signed under penalty of perjury.5 An important consideration in preparing or signing a declaration is to maintain an accurate file of each point of reference the declaration says you read or reviewed.
Why you need an experienced Farmington Utah family lawyer
As an expert witness in a Utah family law case, the attorney of the party that appoints you as their expert witness will advise you. However, you should speak another attorney so that you know what is expected of you and what are your rights and duties as an expert witness. The party’s lawyer will be more interested in protecting the rights of his client whereas you will not have anyone to protect your rights.
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When you need a family law attorney call Ascent Law LLC at (801) 676-5506 for your Free Consultation. We want to help you.
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West Jordan, Utah
84088 United States
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