The Big Q

What’s the worst experience you’ve had dealing with your own expert witness?

Posted May 1, 2004 11:45 AM CDT
By Chris Zombory

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Sheri Engelken
Assistant professor
Gonzaga University School of Law
Spokane, Wash.

I’d hired sight unseen an extremely well-known expert in a trade dress case to conduct surveys. An associate had prepared him for his deposition.

The expert flew in the night before his testimony. He arrived in my conference room looking every year of his 75-plus age, wear­ing what looked like pancake makeup to resemble a Kewpie doll, talking as if he had taken full advantage of the free drinks on the flight. I was horrified, and it wasn’t until he finished testifying a day later that I finally breathed a sigh of relief.

Peter Edwards
Solo practitioner
Roanoke, Va.

I specialized in roofing cases in Miami after Hurri­cane Andrew. While many roofers got rich from “Saint Andrew,” many became dis­­satisfied with their profession and developed a cot­tage industry: They became expert witnesses.

My roofer/expert had all the credentials: trade as­so­ciation president, etc. But he was very meek—had an inferiority com­plex actually. His cross-examination ended with him saying to the jury and not in response to a pending question, “It’s only my opinion.”

Epilogue: I still won because the homeowner did not even have an expert.

D. Thomas Woodruff
Woodruff, O'Hair & Posner
Sacramento, Calif.

I was preparing a family law case to go up on appeal. The issue was the division of retirement plan survivor benefits. Our judge was familiar with our expert and this type of testimony, so I knew the judge would try to hurry us through this somewhat boring testimony.

I met with my expert, an actuary, the day before the hearing and stressed how important it was to get all the details of his calculations on the record. I explained that the appellate courts were not always familiar with actuarial valuation processes and survivor benefits, so we needed to make a good record to help them understand our appeal. He agreed that some case law opinions he had read did not understand actuarial values.

The next day, I called the actuary to the stand. But when I started to ask him the important questions, my expert witness became irritated at me. This expert complained, on the record, that he had already explained all of this to me the day before, so why was I asking him to go through it with me again?

My statement to him and to the court that we felt it necessary to make a clear record was met with something like, "Let's move on." We got as much on the record about actuarial valuation of the survivor benefits as we could by offer of proof and truncated questioning, but the actuary left the stand still upset at me for not understanding him the day before. (We won anyway.)

—edited by Chris Zombory

This month’s answers came from responses to the Question of the Week feature in the ABA Journal eReport.

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