STRATEGIES AND TACTICS FOR RETAINING UTILIZING AND DEPOSING ACCIDENT RECONSTRUCTION EXPERTS

By: William G. Baumgaertner, Esq.

1. Introduction:

Expert testimony is more and more often the lynch pin for favorable verdicts. Typically, the crucial pre-trial point which determines whether a settlement will occur and many times for how much is after the expert depositions. When an expert has been designated to reconstruct an accident, he or she is essentially being asked to supplant in the minds of the judge or the jury a plausible explanation for the event consistent with the facts and the law to promote the cause of the party offering the expert.

Often, attorneys do not retain experts until just before trial. While sometimes acceptable, based on economics or client direction, a late designation usually in results in putting the expert in a position to act only as a "counter-puncher" and rarely provides the attorney the opportunity to meld and direct evidence to support a given theory. Usually just the opposite occurs and the expert is put in a position of having to explain away unfavorable points of the case. Consequently, it is imperative to know at the outset whether an expert accident reconstructionist will be required in a given case. If so, early meetings with the expert are in order to set forth the areas which need to be investigated so that the expert has available numerous facts to support his or her preliminary trial opinions. The deposition of the expert accident reconstructionist should be the last step in a carefully laid plan to convince the opposition of the merits of a given case.

The deposition of the expert reconstructionist can serve two functions. It can be used as a dry run for trial testimony. It may also be used as a mechanism to facilitate a settlement. The designating party should be careful to isolate just how the expert accident reconstructionist is best employed. If developing trial testimony is the goal, the designating party will seek to "play it close to the vest" to avoid unnecessarily educating the opposition. If the goal is to promote settlement, the expert reconstructionist will likely be given free rein to show the weaknesses of the opposition's case. oftentimes, it is prudent for both parties to consider an early exchange of experts. Such tactic provides additional negotiating strength since a party offering to have his expert testify early on is advertising to the opposition that the case is prepared, the theories have been developed, and the opposition can "take its best shot!" Refusal to participate in this is often an indication of weakness.

2. Advisability and Admissibility of Expert Accident Reconstructionist Testimony.

The first decision to be made in any case is whether an accident reconstructionist is necessary. This is a business decision which is case and fact specific. Not every case requires an expert. Oftentimes, unnecessary experts weaken a case. The theme of the case plays a part in whether you should chose an expert accident reconstructionist. Many times, plaintiffs do better in not buying into an expensive expert war by simply arguing from the undisputed facts that only one conclusion can be drawn from the facts, e.g., defendant blew the red light with a .21 blood alcohol reading before colliding with the 70 year old plaintiff on her way to church.

Assuming the economics of the case and the theory call for expert assistance, the attorney's first goal is to assure the testimony of the expert will be admitted. California Evidence Code, § 801 requires that such testimony be "[Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." Be aware that some cases will not support expert testimony, see e.g., Raven's Cove Townhomes, Inc. v. Knuppe Development Co. (1981) 114 Cal.App.3d 783, 786. [The defects (in real property) complained of ... were of a kind which are of such common knowledge that men of ordinary education could easily recognize them.], or that, in some cases, expert testimony is mandatory. Chaplis v. County of Monterey (1979) 97 Cal.App.3d 249, 264 ["if the matter and issue is one within the knowledge of experts only and not within the common knowledge of laymen, it is necessary for the plaintiff to introduce evidence in order to establish a prima facie case."]

3. Type of Reconstruction Expert.

The type of reconstruction expert to employ varies widely with the nature of the accident. Just in the context of automobile accident reconstruction, for example, there are expert -- reconstructionist specializing in driver reaction time, skid marks, coefficients of friction, road gradients, impact analysis, secondary collision, seatbelts, conspicuity and kinematics. The expertise of the designate should be closely tailored to the most compelling and scientifically supportable facts available to the proponent. Oftentimes, it may be an error to try to cover all bases with only one expert. Many times, it is more prudent to simply ignore some issues which are arguably contested and concentrate on the most important issue.

In selecting an expert, consider your expert's availability, qualifications and personality. Even if your expert is the most qualified individual in the western hemisphere on a given point, if he is off giving a lecture in Brazil when you need him, he is of no benefit. Similarly, if your expert is willing to drop everything and come over to discuss any aspect of your case and is even willing to take the case on a "lien", but whose qualifications end with high school, it's likely he won't be highly persuasive. The most effective expert is the one that blends a pleasing personality, a tolerable billing rate, good communication skills and proven expertise.

4. Timing of Expert Retention.

Experts should be considered from the outset. The subject of expert testimony ought to be discussed at the initial client interview for plaintiffs and at the initial evaluation for defendants. The expert accident reconstructionist should be retained at the first practicable point. Hopefully, almost immediately after the initial client interview in a plaintiff's case. The retention of a consulting expert should be considered in any case where the attorney does not know specifically what information is required to properly evaluate the liability factors of the case,, e.g., in a solo accident motorcycle speed wobble case. The advantage of early selection allows evidence to be marshalled efficiently. Perhaps all of the evidence can be assimilated for the plaintiff before the case is even filed. A tremendous advantage is thus established over the defendant who may not even know the lawsuit is coming. Similarly, defendants can expedite the evaluation process by bringing an expert on board at the outset to evaluate what evidence remains, survey the scene before changes occur and know early on whether the case is one to contest or settle. A further significant advantage to early expert retention is the minimization of the need to "counter-punch" or explain away points in the opposition's favor. For example, if experts are not retained until late in the case, the opposition will argue strenuously that the expert's opinion is merely bought and paid for as a last resort. Experts retained at the very last moment are rarely useful for anything other than true impeachment. [e.g., that a basis for an opposing expert's opinion is faulty or non-existent, i.e., an expert has utilized a wrong formula in concluding the force of a vehicular impact].

5. Procedural Checklist Prior to Deposition:

The following checklist should be well known to all California practitioners:

(a) Demand for exchange of expert witness lists:

- May be made any time after the date trial is initially set.

- Must be 10 days after the initial trial date or 70 days before the trial date, whichever is later (C.C.P., § 2034(b))

- Fast track rules often "order" the parties to comply with a § 2034 Demand.

(b) Deposition of expert witness:

- May be taken of any listed expert by any party (C.C.P., § 2034(i);

- May be taken as late as 15 days before trial, notwithstanding the 30 day cut-off for other depositions and discovery. (C.C.P., § 2024(d))

(c) Deposition of expert listed on supplemental list:

- May depose adverse expert listed in supplemental list after 15 day cut-off. Must be "immediate". (C.C.P., § 2034(h))

(d) Motions to Compel related to expert discovery:

- May be heard 10 days before trial, instead of 15 day cut-off on other motions. (C.C.P., § 2034(d)).

(e) Geographical limits:

- Retained experts must be taken within 75 miles of courthouse or action pending, except where "exceptional hardship". (C.C.P. § 2034(i)(1))

- No subpoena necessary. Designating party obligated to produce. (C.C.P. § 2034(i)(3))

(f) Payment of expert fees:

- Deposing party must pay "reasonable and customary fees". Refers to amount disclosed in witness declaration. (C.C.P., § 2034(i)(2))

- Only experts specifically retained to render opinion in preparation for trial are entitled to fees. (compare expert employees or parties) (C.C.P., §§ 2034(i)(2), 2034(a)(2)).

- A variable rate for consulting versus testifying at deposition allowed. See Rancho Bernardo Develop. v. Superior Court (1992) 2 Cal.App.4th 385. But expert not entitled to travel or preparation time. (C.C.P. § 2034(i)(2))

6. Checklist For Deposition of Opponent's Expert:

- Formulate game plan prior to deposition, especially if directed at trial.

- Attach deposition notice and plaintiff's expert declaration.

- Examine qualifications and Curriculum Vitae

- Review plaintiff's responses to discovery,, determining whether expert agrees, supplements, or disagrees.

- If two experts designated, determine extent of contact and similarity of views. Consider arguments regarding lack of objectivity.

- Check for all information and documents relied on. Ascertain all names, places, dates and circumstances.

- Ask about degree of preparation with plaintiff's attorney.

- Question awareness of testing being done, or to be done. Check what designed to show, and how effects testimony.

- Check for working hypothesis/assumptions. Predetermined conclusion?

- Establish rapport. Experts are likely to give more away than necessary.

- Ask if any expert more qualified than he or she. If so, find them. If contrasting view, there is no better expert to put on supplemental list.

- If conflicts in testimony expert has relied upon, determine which view has based testimony on and on what basis.

- Does expert rely on another's conclusions or opinions? Get full disclosure.

- Any previous testimony on this subject? Secure copies of transcripts.

- Take deposition at office of expert. Note relevant books and literature. See if authors agree with deponent.

7. Checklist for Deposition of Own Expert Reconstructionist:

- Conduct frequent meetings during discovery phase of case.

- Conduct thorough pre-deposition conference. Go over all material, demonstrative and documentary, to be relied on at trial. Ask detailed questions as to basis and substance of opinions.

- Cross-examine your expert, using leading questions and hypothetical which mischaracterize the facts.

- Analyze presentation of expert with video and audio tape to polish testimony.

- Emphasize his delivery-maintain eye contact and speak directly, confidently and clearly.

- Advise that expert should not profess to "know" any authorities with which he is not thoroughly familiar. Tell expert to request a review.

- Assure familiarity with nature of objections, and instruct to follow your instructions.

- Let expert know you will not allow badgering, and will terminate or suspend deposition if necessary.

- Do not let plaintiff go on "fishing expedition". Your expert is not there to prepare opponent's case.

- Make sure expert brings nothing more than requested in notice, unless you seek to have it produced.

- Advise against doodling and diagrams. If necessary note for the record they are not to scale, rough, and incomplete.

- Do not allow the deposition to be taken at your expert's home or office. Expert will likely have some additional documents he or she "just remembered".1

8. Miscellaneous Issues:

A. Video tape of expert allowed at trial without showing of "unavailability". (i) A video tape of an expert's deposition is admissible at trial if:

- Deposition notice so states (C.C.P. § 2025(d)(5)), and

- The propounding party notifies the court and counsel what parts are to be relied on to permit advance ruling. (C.C.P. §§ 2025(i)(2), 2025(u)(4)

1 Adapted from Dombroff on Direct and Cross-Examination [Wiley 1985) and Dombroff, Expert Witness in Civil Trials [1987]