Special Session I-E

Expert Witnesses in Trust and Estate Litigation

Litigation Series

Matthew P. Matiasevich
. Evans, Latham & Campisi San Francisco, California

David E. Lieberman
Levin Schreder & Carey Ltd. Chicago, I1inois

Julia B. Meister Taft Stettinius & Hollister LLP Cincinnati, Ohio

Ro bert H. Sitkoff

Harvard Law School

Cambridge, Massachusetts

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EXPERT WIESSES IN TRUST AND ESTATE LITIGATION

Matthew P. MatiaseVIch Evans, Latham & Campisi

One Post Street, Suite 600

San Francisco, Califomia 94104 (415) 421-0288 minatiasevicli@e1c-law.com

Matthew P. Matiasevich Evans, Latham & Campisi San Francisco, California

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Matthew P. Matiasevich is a partner at the law firm of Evans, Latham & Campisi in San Francisco, California. He specializes in trust and estate litigation and has handled a

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wide variety of complicated matters in that area, including internal trust disputes,

surcharge litigation, fiduciary defense, contest litigation, appellate matters,

conservatorship matters, and third-party litigation to recover assets on behalf of a trust or estate. He has handled multi-jurisdictional disputes and has represented both corporate fiduciaries and professionals such as attorneys and accountants who serve in a fiduciary capacity.
Mr. Matiasevich is active in the American Bar Association and is the chair of the Litigation, Ethics and Malpractice Group for the Real Property, Probate and Trust Law
Section, having formerly served as the chair of the ethics commttee and the liaison to

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the SOC/ CPR Joint Commttee on Ethics & Professionalism. He is also active at the state level, where he is a member of the Executive Commttee of the Trust and Estates
Section of the California Bar.

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His publications include co-authorship of the book California Trust and Probate Litigation (Campisi & Latham, CaL. Trust & Probate Litigation (Cont. Ed. Bar 2008)) and numerous

updates for that book, as well as articles in Probate & Property magazine. He has
lectured to numerous professional organizations at the locaL, state, and national level,

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including the American Bar Association, the American Bankers Association, and the Heckerling Institute on Estate Plannng. He holds a B.A. from Stanford University and
a J.D. from the University of California, Davis.

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David E. Lieberman Levin Schreder & Carey, Ltd.

Chicago, Ilinois

David E. Lieberman is a is a trial

lawyer and partner in Levin Schreder & Carey Ltd., a

boutique law firm focused on federal income tax, estate tax, gift tax and charitable
plannng, as well as resolution of disputes. Mr. Lieberman focuses his practice on

complex trust and estate disputes and controversies involving family-owned and other closely-held businesses.
Mr. Lieberman speaks on trust, estate and closely-held business disputes, including programs sponsored by the American Bar Association Section of Real Property, Trust

and Estate Law, ABA Section of Taxation and The International Association of
Attorneys for Family-Held Enterprises. He also serves as a guest lecturer on trst and

estate controversies at Loyola University School of Law.

Mr. Lieberman is a graduate of the University of Chicago Law School, where he was a
member of the Law Review, and received a Sc.B. degree, magna cum laude, from Brown._

University.

Julia B. Meister

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Taft, Stettinius & Hollster LLP

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Cincinati, Ohio
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Julia B. Meister is a partner in Taft's Litigation, Health and Life Sciences, and Private Client practice groups and heads the firm's Cncinati Estates Trusts and Fiduciary Litigation practice. She counsels clients and represents them in

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commercial and estate, guardianship, trust and fiduciary matters and

professional ethics and discipline matters before courts, administrative tribunals, and arbitrators. Julia advises clients on a variety of health care issues including
privacy, statutory compliance, and decision makg by health care surrogates.

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addition, she represents health care clients in disciplinary proceedings and

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investigations before licensing boards and professional societies. Julia is

recognized in Best Lawyers in America in two practice areas: Commercial

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Litigation and Estates and Trusts, and has a peer ratig of "A V" in Martindale-

Hubbell. She is an appointed member of the Ohio State Bar Association's Estate

Planng, Trust and Probate Law Section Council and serves on several
commttees of the Section Council, including Guardianships, Jury Instructions,

and the Ohio Trust Code. She has published numerous articles in the Ohio
Probate Law Journal and recently served on the Ohio Supreme Court's Summt
on Aging Planing Commttee.
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Julia graduated with honors from Xavier University in 1991 and the Notre Dame
Law School in 1995. She served as an editor of the Notre Dame Journal of Law

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Ethics and Public Policy and was awarded the A. Harold Weber award for
Excellence in Legal Writing. She has worked in administration at the Notre Dame
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Law School and served as an adjunct professor at the University of Dayton Law
SchooL. Julia was named one of the Cincinnati Business Courier's Forty Under Forty

emerging leaders and has been recognzed in multiple years by Cincinnati Magazine as a Super Lawyers Rising Star and by the YWCA Academy of Career Women of Achievement as a Rising Star. She is active in several legal and community organizations and currently serves as a vice president and trustee for

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the Cincinati Opera Association, a trustee for the Kentucky Symphony

Orchestra, and an officer of the Cincinnati Area Senior Services board of trustees.

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Robert H. Sitkoff
Harvard Law School

Cambridge, Massachusetts

An expert in trusts and estates, Robert H. Sitkoff is the John L. Gray Professor of Law at

Harvard Law SchooL. The youngest chaired professor with tenure in the history of
Harvard Law School, Sitkoff previously taught at New York University School of Law and at Northwestern University School of Law. Sitkoff received teaching awards in
2001,2002, and 2007.
Sitkoff's primary research focus is economic and empirical analysis of the law of trsts

and estates. His work has been published in leading scholarly journals such as the Yale Law Journal, the Columbia Law Review, and the Journal of Law and Economics. Sitkoff is a

co-author of Wils, Trusts, and Estates (Aspen 8th ed. 2009), the leading American coursebook on trusts and estates. He is currently working on a series of empirical studies of trust law reforms that wil form the core of a book to be published by, Yale
University Press (co-authored with Max Schanenbach).

Sitkoff is an active participant in trusts and estates law reform. Sitkoff serves under gubernatorial appointment on the Uniform Law Commssion, for which he is a liaison' member of the Joint Editorial Board for Uniorm Trusts and Estates Acts, the principal oversight body for all uniorm law activity pertaining to trusts and estates. Sitkoff is
also a member of the draftig commttees preparing Uniform Acts on Powers of

Appointment and on Premarital and Marital Agreements. Sitkoff previously served as ' the reporter for the Uniform Statutory Trust Entity Act (2009). Within the American Law Institute, Sitkoff served on the consultative groups for the Restatement (Third) of Trusts and the Restatement (Thrd) of Property: Wils and Other Donative Transfers.
Sitkoff has served as an advisory consultant and expert witness in litigation and regulatory matters involving wils, trusts, estates, and fiduciary administration. In 2007,
Sitkoff was named an up-and-coming young lawyer by Lawyer's Weekly USA. Sitkoff's
research has been featued in the Wall Street Journal, Business Week, Financial Times, and

other leading media outlets. Sitkoff is the editor of the Wils, Trusts, and Estates
abstractig journal in the Social Science Research Network, is a past Chair of the Section

on Trusts and Estates of the Association of American Law Schools, and is a Fellow of

the American College of Trust and Estate CounseL

Prior to joinng the legal academy, Sitkoff was a law clerk to Chief Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit. At the University of Chicago Law School, from which he graduated with High Honors, Sitkoff was the Managig Editor of the Law Review, was selected for the Order of the Coif, and was
awarded the Olin Prize as the outstanding graduate of his class in law and economics.

I. Introduction

Parties often use expert witnesses when litigating a trst or estate dispute. Even
though many of these suits are tred to a court rather than a jury, the specialized nature of

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this litigation often leads the parties to bolster their case with expert testimony in one or
more subjects. Indeed, for certain issues, expert testimony may be expected or may well
be the only means of

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proving one's case.

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Because experts are so prevalent in litigation of this nature, counsel should understand how to deal with them - both frend and foe - before embarking on a significant piece of litigation in this field. Experience can be an unsympathetic teacher where experts are concerned, and counsel wil find that their own pedormance improves and that the threat of surprise is lowered when they have thought about these matters ahead of time rather than waiting until it is too late.
Typical experts include the following:
The standard-of-care expert: This witness opines on whether the trstee met

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the standard of care or failed to do so in the case at bar. (See, e.g., Pizel v. Whalen (Kan. 1993) 845 P.2d 37, 41-42 (expert testimony on trstee failure to meet standard of care by
not reading or understanding terms of

trst); Allardv. Pacifc Nat. Bank (Wash. 1983)

663 P.2d 104, 107, 109-110 (expert testimony offered on trustee failure to meet standard
of care by not seeking appraisal of trst propert marketed for sale).

Investment experts: These witnesses testify on matters such as whether the trstee prudently managed the trust assets and whether a particular investment was sound or unsound. (See, e.g., Law v. Law (DeL. 2000) 753 A.2d 443,447-449 (expert testimony
on hypothetical investment strategy trstees should have used); Robertson v. Central

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Jersey Bank & Trust (3rd Cir. 1995) 47 F.3d 1268, 1274-1275 (expert testimony on its own corporate stock). trustee's failure to diversify by retaining high percentage of
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Construction-of-instrument experts: These witnesses testify on matters such as

the construction of trsts and wils, the reformation of

trsts, etc. (See e.g., In re Trust

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for Gore, 2010 WL 5644786 (Del.Ch. 2010) ("I am satisfied that their opinions, if accepted, with respect to, for example, the context, circumstances, and drafting techniques animating estate planning almost forty years ago and how the two instruments would achieve (or fail to achieve) the Settlors' estate and tax planning objectives would
assist the Court in gaining a better understanding of the Settlors' intent.

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Verdisson (1992) 4 Cal.App.4th 1127, 1134 (expert testimony from a French lawyer on the probable meaning of terms used in the wil of a decedent who was born and raised in France)).
Competency

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experts: These experts opine on whether an elderly transferor was

incompetent for the purose of making a certain disposition or whether the elderly

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transferor was susceptible to undue influence. (See, e.g., Estate of ACN (N.Y.Sur. 1986)
509 N. Y .S.2d 966, 970-971 (expert testimony by forensic psychiatrist that formerly

unitrst); Conservatorship of

brilliant attorney had dementia and lacked capacity to execute charitable remainder Davidson (2003) 113 CaLAppAth 1035, 1044Estate of
1045, disapproved on other grounds (expert testimony by geriatrc forensic psychiatrst

that dependent adult had capacity and was not susceptible to undue influence by care

provider).)
Treating physicians: These witnesses might opine on matters such as whether

the elderly transferor was competent and whether his or her mental faculties were

diminished by physical ailments or the effect of certain medications. (See, e.g., Estate of Clines (N.Y. App. Div. 1996) 226 A.2d 269,270-271 (expert testimony by long-time treating physician that decedent's organic brain syndrome prevented him from making voluntary inter vivos gift); Rands v. Rands (2009) 178 Cal.AppAth 907 (expert testimony
by treating physicians as to reasons for issuing capacity certfications for trstor seeking

to revoke trst).

Questioned document examiners: These experts testify about matters such as whether handwriting is forged and whether pages in a document have been improperly
substituted. (See, e.g., Churchil v. Skjerding (Conn. App. 1993) 624 A..2d 900, 903

(expert testimony that decedent did not sign wil based on comparative analysis to signatures on attached maps); Papenhaus v. Combs (W.Va. 1982) 292 S.E.2d 621,626627 (expert testimony that decedent's signatue was forged).)

Forensic accountants: These witnesses might testify about confusing financial

transactions, particularly if the documentation is incomplete or the case involves commingled funds. (See, e.g., Alco Industries, Inc. v. Wachovia Corp. (E.D. Pa. 2007) 527 F.Supp.2d 399, 407-408 (expert testimony by forensic accountant as to failure to
trust); Dibblee v. Title Insurance & Trust Co. (1942) 55 CaLApp.2d 286, 776-777 (non-suit for trstee upheld where expert accountant testified that discrepancy in trust value could only be explained by how third part applied formula for depositing securities in trust).)
diversify investments in retirement plan in ERISA case for breach of

Damage experts or appraisers: Certain tyes of litigation may require that a

part establish the value of an asset such as real propert or an interest in a closely held business, while others might require that a party establish damages based on lost rents or market appreciation. (See, e.g., Mest v. Dugan (Or. App. 1990) 790 P.2d 38,41-42 (insuffcient evidence of damages in breach of trst case where licensed real estate
appraiser gave expert testimony on highest-and-best-use value of

property, but not

market-rental value for its current use as car dealership); Brown v. Schwegman (La. App. 2007) 958 So.2d 721, 724-725 (expert testimony calculating damages based on expected value of trust if properly diversified in light of varous factors, including pedormance of market indexes).) In certain circumstances, an expert such as an investment expert or a forensic accountant might also serve as an expert with regard to certain types of damages. Sioux City (N.D. Iowa 2005) 358 F. (See, e.g., Willams v. Security National Bank of Supp.2d 782,803-808 (denying motions in limine to exclude an expert's testimony on

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both market-index measure of damages and bank's failure to diversify trust investments); Wasserman v. Schwartz (N.J. Super. 2001) 836 A.2d 828, 830-839 (relying on expert forensic accountant's testimony to determine equitable distrbution of marital assets to deceased wife's estate and to impose all taxes for retirement account withdrawals on
suriving husband).)

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Tax experts: These expert witnesses might testify on such issues as the tax effect
of distrbutive provisions in a will or trst, whether a fiduciary has taken the proper steps

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to minimize taxes in making investment decisions or fiing tax returns, or whether an individual's estate plan has been adequately drafted to satisfy his or her tax avoidance
goals. (See, e.g., Patterson v. Checkett (Mo. App. 2001) 43 S.W.3d 477,481-482
(affirming judgment in legal malpractice case where

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decedent' s wife and heirs failed to

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offer any expert testimony showing that the alleged misfinding of trst caused negative

tax consequences); In re Cohen (N.J. Super. 2000) 760 A.2d 1128, 1140 (ruling that settlement agreement among beneficiaries to revise an incompetent's estate plan was unenforceable where tax expert testified that creation ofQTIP trst for one beneficiary's wife made no sense as tax-savings measure); Ike v. Doolittle (1998) 61 Cal.AppAth 51, 67 (upholding reformation of trust due to drafting error in part based on expert testimony on tax savings).)
Experts on foreign law or customs: Expert testimony on foreign law or customs

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may be warranted in a variety of circumstances, including to determine whether foreign law should be applied to resolve a particular trst or estate issue, what the foreign law requires if it does apply, and whether there is reciprocity between the jurisdictions on probate matters. (See, e.g., In re Gyfteas' Estate (N.Y. Sur. 1968) 300 N.Y.S.2d 913, 916-919 (use of expert testimony to show Greek executors had power under Greek law to name ancilary administrator in New York to handle charitable gift of U.S. property); Estate of Spoya (Mont. 1955) 282 P.2d 452,454-456 (use of expert testimony on law of Yugoslavia to show reciprocity of inheritance rights between it and U.S.); In re Johnson's Estate (1950) 100 Cal.App.2d 73, 79-80 (use of expert to testify on Norway law of adoption in will contest J.

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Experts on the reasonable value of trustee or attorney services: Expert

witnesses may be called upon to testify on the reasonable value of trustee or attorney
services and the appropriate amount of

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fees. (See, e.g., Donahue v. Donahue (2010) 12

Cal.AppAth 259, 276-277 (reversing and remanding attorney fee orders in trst proceeding where trial court failed to adequately evaluate if fees were reasonably
incurred for the benefit of the trst where evidence showed duplicative work by multiple

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law firms and a "bet the farm" approach to litigation; "It is true that judges themselves are deemed to be experts on the value oflegal services. . .. But a judge's litigation experience may not extend to many critical aspects of fee awards pertaining to prudent
trst administration, including management of complex litigation.... In this area, the

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fee experts may assist the trial court on remand.. .."): Estate King (D.C. App. 2001) 769 A.2d 771, 777-779 (reviewing fees for co-personal representatives who were also trstees, including expert testimony as to statutory factors, customary local practice and institutional trstees' standard schedule of fees and
testimony or declaration of of

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commissions); Brake v. Murphy (Fla. App. 1999) 736 So.2d 745, 746-749 (reversing attorney fees award to trst beneficiaries based on reconstrcted biling records; "there should be an expert to testify" to the necessity for legal services, the reasonableness of time claimed and the reasonable value of that time).) Experts may also be used to opine
upon the reasonableness of other types of fees and services in

,probate matters. (See, e.g.,

Rolleston-Daines v. Estate ofHopiak (1999) (N.Y. App. 1999) 263 A.D.2d 883,884-885 (professional photographer testified as expert on value of services performed by decedent's frend who was hired by estate administrators to organize decedent's slides for an exhibit); Jacobs v. Brock (Wash. 1965) 406 P.2d 17,21-22 (in quantum meruit action against decedent's estate, witness who operated nursing homes was qualified as expert and her testimony on value of care rendered to decedent should not have been strcken).
Transactional experts: Expert witness testimony may also be helpful in circumstances where a trst or estate owns unique assets or engages in specialized tyes

transactions or businesses. (See, e.g., Vento v. Colorado National Bank-Pueblo (Co. of App. 1995) 907 P.2d 642, 645-646 (testimony by coal mining expert in surcharge action
against trstees for mishandling lease negotiations for mine); Succession of Doll (La.

1992) 593 So.2d 1239, 1249-1250 (testimony by forestry expert on conservation issues involving estate's timber business); Johnson Estate (Pa. Com. PI. 1970) 51 Pa. D. & C.2d 147, 150-153 (testimony by art museum expert on exhibiting, storing and protecting decedent's art collection in trst proceeding); In re Ambrose's Wil (N.Y. Sup. 1960) 12 plant A.D.2d 687,687-688 (expert testimony on need for reserve to pay for cold storage
in management oftrsts apple farm); see also In re Estate of Rothko (N.Y. Sur. 1974)

362 N.Y.S.2d 673, 674-676 (art valuation expert who had provided earlier affidavit could not be compelled to testify against his wil at trial on removal of executors for selfdealing art sales).

II. Selecting Issues For Expert Testimony and The Admissibilty of That

Testimony
When considering whether to retain an expert, counsel should consider the various purposes for which an expert may be used. Many attorneys wil consider retaining experts as consultants at the outset of a case. A consultant can help evaluate the case, select theories of liability or defense, educate counsel, suggest avenues of investigation or discovery, and recommend testifying experts. Consultants usually provide greater value when retained early in the case.

In practice, many experts are not retained as consultants and are instead hired at the proverbial last moment to testify at triaL. When deciding whether to retain an expert to provide testimony in a certain area, the attorney should weigh the potential benefit to using that expert, i.e., both the be gained from an expert's testimony against the cost of that expert's testimony and the potential cost to the case, which may monetary cost of involve considering factors such as the relative importance or unimportance of the issue that the expert would testify about, the possible diffusion of one's own case in chief,

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whether the expert's opinion can be viewed as dispositive or whether that opinion would merely depend on contested facts that speak for themselves, etc. As a practical matter,
counsel may find that a choice is forced on them by the nature of the case. Some disputes
wil entail expert testimony as a matter of course, even if that does not amount to a legal

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requirement. For example, if one claims forgery in a bench trial, the court may expect to hear from a forensic document examiner and may have a difficult time crediting the
argument of one who declines to supply an expert of that tye. Furthermore, counsel may find that their hand is forced by their opponent. When the opposing part designates

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experts for tral, experienced counsel wil consider whether it is advisable to have their own experts on those topics.
Counsel should keep in mind that while they may want to use expert testimony at that nature is not automatically admissible. Generally, expert tral, testimony of testimony is only admissible if it involves 'a subject beyond the experience of a layperson, in understanding the evidence or in deciding a disputed fact if it wil assist the trer of factual issue, and if it is given by a witness who is qualified to testify on the subject by virte of special knowledge, skil, education, or training. (See, e.g., Fed. Rule Evid. 702 (setting fort general standard for admission of expert testimony); see also, e.g., Bozzi v. Nordstrom (2010) 186 Cal.AppAth 755, 762 (testimony of expert witness inadmissible where he stated no facts to support his conclusions, his opinions were conclusory and jurisdictions, the speculative and he had not inspected the propert in issue).) In most judge serves the role of gatekeeper and makes an initial determination whether the expert's qualifications, methods, and conclusions are admissible. (See, e.g., Crocker v. Roethling (N.C. 2009) 675 S.E.2d 625,638 (trial court's function is "determining admissibility by requiring expert witnesses to elucidate both the facts underlying their link between those facts and the experts' opinions."); prof erred testimony and the logical Grondin v. Curi (Conn. 2003) 817 A.2d 61, 74 (trial court that permits an expert to testify "without first determining whether he or she has a sufficient basis for knowing the 'prevailing' standard of care is abdicating its evidentiary gatekeeping responsibilities.").)

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To save money and avoid potential embarrassment, counsel should consider the issue of admissibility sooner rather than later, which may prove more difficult when the issue is whether the testimony would constitute an improper legal opinion. The dividing line between acceptable testimony from a standard-of-care expert and objectionable legal opinion is not always clear, though it seems as though many courts wil err on the side of
allowing that testimony, especially in a bench tral. (See, e.g., In re Estate of Po

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user (Az.

1999) 975 P.2d 704, 710; Estate ofGump (1991) 1 Ca1.AppAth 582, 595; In re Estate of
Lenahan (Fl. App. 1987) 511 So.2d 365, 371; Matter of

Irrevocable Inter Vivos Trust

Established by R. R. Kemske (Minn. 1981) 305 N.W.2d 755, 759-760.)

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Furthennore, while the majority of experts fall into one of two aforementioned categories - the consulting expert hired at the outset or the testifyng expert hired for trial - counsel may find that experts are useful at other stages ofthe litigation. For example, some attomeys might use an expert opinion in settlement negotiations, which may be particularly helpful when the parties are far apart on the amount at stake. In that instance, the opinion of a damage expert may help the respective counsel establish a common

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ground or may otherwise help correct the erroneous assumptions that are preventing
settlement. Since most cases resolve before trial, counsel should consider using experts

to help facilitate that process.

For issues that may arise when the attorney uses a consultant as a testifying expert, see the discussion below regarding the attorney-client privilege.

III. Dealing With One's Own Expert

A. Confidentiality: The Attorney-Client Privilege And The

Work-Product Doctrine
Retaining an expert raises immediate questions of confidentiality. Counsel must understand whether communications with an expert wil be confidentiaL. The lawyer who assumes that communications with an expert wil be protected by the attorney-client
privilege or the work-product doctrine may be in for an unpleasant surrise.

As described below, the expert is usually retained by the attomey, not the client, in order to maintain possible confidentiality until the time comes, i.e., if the expert is disclosed as a testifying expert, most if not all confidentiality may be lost, depending on the rules in that jurisdiction. For planning puroses, the lawyer should assume that all communications with an expert wil be non-confidential unless the lawyer has researched the matter under the laws of the appropriate jurisdiction and concluded that confidentiality exists, and even then the lawyer should be aware that confidentiality can
be lost by waiver or by designating the expert to testify at triaL.

Generally, for discovery purposes, there are two tyes of experts: testifying experts whose identity must be disclosed and consulting experts whose identity need not be disclosed. When dealing with experts who are retained to testify at trial - or with
consulting experts who might be designated to testify at tral - attomeys should be

cautious about providing them with damaging information that may have to be disclosed later on in the process. This does not mean that the attorney should withhold information that pertains to a question on which the expert wil be opining. To enable the expert to form a valid opinion on an issue, the attorney should inform the expert of all material
facts bearing on that issue. Otherwise, the expert's opinion may be defective, and if

the

expert testifies, he or she may be unduly susceptible to cross-examination.

The need to inform the expert of the material facts regarding the subject of expert's testimony, however, does not equate to a general recommendation to chat with
the expert about the case. When the lawyer retains an expert as a mere consulting expert,

counsel can ordinarily discuss extraneous matters with the expert without fear of disclosure, assuming that the expert is reliable and has been instrcted not to disclose anything about the consultation. When the expert is designated as a testifying expert,
however, that expert may well have to sit for a deposition and may well

lose any legal

protection that would let the expert decline to answer about communications with the

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retaining attorney. Hence, the attorney's improvident e-mails or statements to the effect that "the client is terrfied to take the stand" or "fortnately they haven't figured out the effect of this trst provision" may come out in the discovery process. The best solution is to assume from the outset that all communications to a testifying expert wil be disclosed, which wil deter counsel from making statements of this nature to the expert, particularly in writing.
Whether there is confidentiality when a lawyer communicates with an expert depends on the attorney-client privilege and the work-product doctrne.
As a practical matter, the attorney-client privilege rarely applies to experts for the simple reason that the expert is almost never the "client" and hence communications are
not confidentiaL. The federal rules and many state rules are similar in this regard. (See

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pretrial or other disclosure, production or inspection" (while cases can be divided between federal and state "in recent years several states have adopted statutory rules which follow more or
73 ALR2d 12, "Statements of paries or witnesses as subject of

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less closely the federal provisions"). .

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There are possible exceptions where the attorney-client privilege may apply, e.g., where an expert is in effect acting as an agent of the client (such as where the expert "translates" into technical language experiences that the layperson client cannot express) or where the expert is him or herself an employee of a corporate client. (See Upjohn Co.
v. u.s. (1981) 449 U.S. 383.) In any event, when an exception does apply, the expert
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should be cautioned against inadvertently waiving the attorney-client privilege by talking or writing about the matter.
Since the attorney-client privilege is usually inapplicable, confidentiality depends on the protection granted by the work-product doctrne. This aspect of the law wil usually shield the opinion of a consulting expert if that expert was retained by the
attorney. As a result, it is important that the attorney - and not the client - retain the

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expert. While an expert's opinion may be protected in this way, the expert's percipient knowledge of the case generally is not, i.e., if the expert was also a percipient witness, he
should not be able to avoid testifying about matters that he saw or heard. Under the

federal approach that many states appear to follow, work product (including the work of experts) must have been prepared for the predominant or sole purpose of anticipated the work litigation or trial in order to be protected. (See Fed. Rule Civ. Proc. 26(b).) If product satisfies this test, federal law then applies a two-level analysis and provides that some material is entitled to absolute protection from discovery (e.g., the attomey's impressions, analysis, research) whereas other material is only entitled to conditional protection (e.g., notes of interviews, the results of expert testing, etc.) and thus may have to be disclosed under certain circumstances. (See, e.g., Riggs National Bank of
Washington, D.C v. Zimmer

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(DeL. Ch. 1976) 355 A.2d 709,714-715 (in surcharge action,

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ordering production of attorney's tax memorandum where beneficiaries showed

"substantial need" for discovery despite work product objection); Levine v. St. Luke's

Hospital (E.D. Pa. 1969) 47 F.R.D. 362 (in wrongful death action, ordering autopsy

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report and slides to be produced to defendant where autopsy had effectively removed
evidence of cause of death).

The protection offered by the work-product doctrne can be waived, and thus caution must be exercised. Unless the law of the applicable jurisdiction provides otherwise, counsel should assume that once an expert becomes a testifying witness, any work-product protection wil be lost, both as to the expert's own work and opinions and as to any materials or communications that the expert received from the attorney.
law has changed and now appears to protect confidentiality to a Civil greater extent for the testifyng expert. In December 2010, Federal Rule of Procedure 26 was amended and now expands the protection for work product that was supplied to or created by a testifying expert. The revised rule (1) states that an expert's report must provide only the facts or data considered in forming the opinion; (2) grants work product protection for communications between an attorney and any witness reports from required to provide a report, with some exceptions; and (3) protects drafts of disclosure. However, counsel should remember that a change to the federal rule does not necessarily change the law in the state cours where the vast majority oftrust-and-estate disputes are litigated. There may be a significant delay before the state in question adopts the federal approach, and the state may decline to do so at all.
The federal

In sum, when-retaining an expert, counsel should consider the issue of whether and to what extent any communications with that expert wil be confidentiaL. The attomey should know the law of the jurisdiction and should know if the expert is being
retained (1) as a consultant only; (2) as a consultant who might testify at trial; or (3) testifying expert from the outset. 'This wil

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help the attorney focus on the confidentiality issues. Furthermore, the attorney should not assume that the expert understands these matters and should go over them with the expert at the beginning, i.e., the attorney should discuss the need for confidentiality, how they wil communicate, what gets put in writing, etc. Even if they have a good deal of sophistication and experience, experts might not keep these principles in mind and might further assume that the retaining attorney wil remind them of any procedures or practices that they should be following.

B. Providing The Expert With What Is Needed For An Opinion

When dealing with a testifying expert, it is important to frame the issues in such a way that the attorney and expert both understand what is being asked and how it fits into the overall framework of the case. In some cases, the expert wil suggest a possible issue that the attorney has not considered or wil suggest reframing an issue, but for the most what is needed, part the retaining attorney will (hopefully) have a good understanding of particularly if the expert is being retained just before tral. The attorney and the expert must both understand what the expert is being asked to opine on, and, conversely, what the expert is not being asked to say. Any confusion here may reveal itself in deposition or on the witness stand.

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When the attorney deals with a consulting expert, their relationship often rests on a different footing. The attorney may have retained the expert at an early juncture and may lack familiarity with the area of expertise, etc., and so the two of them are much more likely to have a far-ranging discussion about the entire case. As long as the expert remains a consultant, there is ordinarily little risk in such an arangement, apar from the cost. However, if the attorney wants to designate that consultant as a testifyng expert, the attorney should consider the confidentiality issues discussed above, i.e., that expert may have received communications that the attorney wants kept confidential or that expert might have been exposed to the attorney or client in such a way that renders the
expert more susceptible to cross-examination.

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Once the attorney has framed the questions for the expert or at least identified the subjects for possible testimony, the attomey must provide the expert with the information
that the expert needs to form an opinion. The expert should be .supplied with all

information about the case necessary to form an opinion on the issues desired (including, e.g., relevant documents, deposition transcripts, interrogatory answers, etc.). Failure to provide complete information can result in a flawed opinion that can easily be challenged
on cross-examination.

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Asking the expert to provide an opinion based on assumptions provided by the attomey can be a cheaper and simpler alternative to having the expert review the file, but that may be appropriate for certain types of experts (e.g., standard of care experts in certain circumstances) and inappropriate for others (e.g., medical experts). Again, a full the expert's opinion is to withstand challenge. and accurate assumption is important if The attorney should remember to supplement the information to the expert as more
becomes available. However, when dealing with an expert who might testify, the
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attorney should take care not to provide that expert with any of counsel's own written notes, particularly those reflecting the attorney's thoughts, analysis, or summary of the case.
Having framed the issue and provided the expert with the necessary information~ the attorney should then make sure that the expert understands the process - that the expert wil review the material and form an opinion that the expert 'wil then communicate to the attorney, usually by phone. For obvious reasons, it is normally
inappropriate for the expert to form an opinion before reviewing the appropriate material

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and considering the matter at length; otherwise, the expert may have exposed himself to unpleasant cross-examination.

Counsel should keep several other issues in mind when dealing with their own
expert.

To ensure that the process runs smoothly, counsel should keep in touch with the expert and make sure that any work is proceeding as it should. Even a trustworthy expert may "backburner" an assignment while others may spend far more time than the
assignent justifies, thus leaving the attorney with a large bil that the client may be

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unwiling to reimburse. The attorney should try to head off these problems by staying in

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reasonable contact with the expert and by setting cost maximums that the expert must have permission to exceed.

To prevent furter difficulties, the attorney and the expert should both know the product that wil be required after the expert forms the opinion, i.e., whether the expert wil be providing a report or testifying at tral - or both - if the opinion is favorable to the
attomey. Some experts wil begin drafting a report during their initial review and may

inadvertently leave the attomey with a paper trail that the attomey did not expect.

The attorney should also consider the larger issue of what wil be put in writing. As a practical matter, unless the law of the jurisdiction clearly provides otherwise, counsel should assume that the discovery process wil require disclosure of all written communications with the expert and all written material that the expert generated including the expert's notes, drafts, e-mails to and from his own staff, transcriptions of voice-mail messages, bils to the retaining attorney, etc. Thus, at the outset, the attorney should discuss the issue of what wil be put in wrting and caution the expert about unnecessary written comments that might be taken out of context at a later date. As a practical matter, some assignents wil require that the expert take notes and generate written material, but most experienced attomeys prefer to keep that to a minimum because every piece of paper gives the opposing side more fodder for cross-examination.
The attorney should also remember that dealing with an expert may involve, a

process of education on both sides. In many instances, the attorney wil not be in a position to evaluate the potential usefulness of the opinion and the potential risks involved unless the attorney understands that opinion, i.e., the concepts that the expert used, the jargon involved, the methodology selected, the alternate approaches, etc.
From the other perspective, the expert may need to be educated about the law. This may entail more than simply instrcting the expert on how to be a good witness. Depending on the substance of the opinion, the expert may need to be instrcted on the law in order to function properly. For example, competency experts such as neuropsychologists are sometimes asked to opine on whether a decedent had capacity when they have no understanding whatsoever of the law on point, which leaves them particularly vulnerable to attack; many a competency expert has taken the witness stand and applied the wrong standard altogether. Failure to understand the law can also lead the expert to overstate or argue in such a way that damages the testimony. For example, forensic accountants should not purport to testify about proper trust administration unless they also qualify as standard-of-care experts; an accountant who veers away from his or her legitimate expertise is at the mercy of the cross-examiner and may well look foolish in the end. In many instances, mistakes of this nature occur not because the expert intends to be argumentative, but because the expert does not understand how the testimony fits in with the case and because the expert has not been sufficiently educated as to his or her role in the process.

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Whether To Designate The Expert To Testify At Trial

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After the expert has informed the attorney of his or her opinion, the attorney wil then face the question of whether to designate that expert for tral, which wil bring that expert to the other side's attention and expose that expert to the discovery process and to
a deposition. When deciding whether to designate an expert for tral, counsel should

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weigh the benefit of obtaining that expert's testimony (i.e., how important the testimony is to the case, how strong the expert is, etc.) against the potential costs (i.e., the financial cost, any risk of unwanted disclosure, whether the expert is susceptible to damaging cross-examination, etc.).
Some of the potential costs may be hidden or may be difficult for the attorney to spot in the fluny of tral preparation. For example, this can occur when the expert was asked to opine on numerous issues and came back with an extremely favorable opinion , on'some matters and a lukewarm or unfavorable response on others. In this situation, the attorney has to weigh the cost of having the expert turned against the very case that he or she is supposed to be supporting.

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The attorney might be able to prevent difficulties like this by carefully selecting the issues that are presented to the expert for review. This assumes that the attorney could identify the problem issues in advance, either by the attorney's own work or by consulting with a non-testifying expert ahead of the time. But depending on the rules of particular jurisdiction, counsel might stil face the risk of having the expert questioned on matters that are beyond the scope of the requested opinions for triaL. The attomey should therefore consider the issue of whether the applicable law wil allow him to restrict the scope ofthe expert's testimony and whether that expert wil cooperate with the attempt. At a deposition, it is not unusual for opposing counsel to attempt to "make the expert their own" by asking questions about matters that are outside the scope of the requested opinion. Thus, before designating an expert for tral, counsel should consider (I) the extent to which this poses a threat; (2) whether the applicable law permits counsel to restrict the scope of the expert's testimony at deposition and trial; and (3) whether the expert intends to cooperate with any such attempt.

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The Expert's Report

Depending on the rules of the particular jurisdiction, a report may be required from a testifyng expert. Otherwise, whether the attorney should request a report depends , on the nature and complexity of the case. For example, when the expert is opining on one issue that turns on a limited number of facts, a report may be unnecessary and may only serve to generate possible impeachment materiaL. On the other hand, in a complex case, a written report may be necessary, particularly if the expert is being asked to opine on a wide variety of matters. For example, a forensic accounting almost invariably entails the preparation of wrtten material by the expert, given the nature of that assignment.

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When the expert's report is required by law, counsel should tr to ensure that it

complies with the applicable requirements. (See, e.g., Fed. Rule Civ. Proc. 26(a)(2)(B) (setting forth a list of contents for any required expert reports, as discussed fuher, infra).)
When a report is not required by law but the attorney nonetheless requests one from the expert, the attorney should tr to ensure that it is accurate and a reasonably the expert's opinion on the matter. A misleading report can be an complete statement of effective tool in the hands of a cross-examiner who has noted the deficiencies.

iV. The Disclosure Process

In most cases, once the attorney has selected an expert to testify at tral, that expert must be disclosed to the other parties in the case.
The disclosure process varies according to the laws of the particular jurisdiction.
There is almost always a time element (i.e., a deadline by which the attorney must

disclose the expert) and a substantive element (i.e., required content that the attomey must disclose about the expert's anticipated testimony). Counsel should make sure that they follow the applicable rules since the failure to do so can result in the exclusion of
par of the expert's testimony or the exclusion of

the expert altogether.

Civil Procedure. Generally, the discovery of expert-witness information in the federal courts is governed by Federal Rule of Civil Procedure 26, but the federal courts have authority to establish the timing and scope of disclosure requirements, so attorneys must comply with any specific requirements set by the judge as well as with the rule. The timing of expert disclosure is tyically set by court order or party stipulation or, if neither, must occur at least 90 days before the trial date. Rebuttal disclosure must occur within 30 days after disclosure by the other side.
Many states appear to follow a version of the Federal Rules of

In some jurisdictions, a report is not required. The attorney might simply be required to list the expert and provide a brief narrative statement of the general substance
of the testimony that the expert is expected to give. (See, e.g., CaL. Code of Civil Procedure 2034.260(c)).

However, under the federal approach, a report is required and is part of the
disclosure process. If an expert is retained to provide expert testimony, counsel must

provide a written report that is signed by the expert. The report must contain a complete statement of all opinions and the grounds therefore, the facts and data considered, any exhibits to be used, and the expert's compensation and qualifications, including a list of any publications over the last ten years and a list of other cases in which he or she has testified or been deposed in the last four years. The report requirement may be waived by court order or stipulation. The expert's actual testimony at trial must track as nearly as

I-E-12

possible the substance of

his or her report, or that testimony may be excluded. The expert

is also subject to fuher discovery by deposition, interrogatory and subpoena duces tecum. The court may require a par seeking discovery to pay a reasonable fee for the time spent by the expert responding to discovery. For testifying experts who do not have to supply a report (e.g., treating physicians), the disclosure must state the subjects on which the witness is expected to present evidence and a summary of facts and opinions on which testimony is expected. The federal rules provide for a separate process for discovering the identity or opinions of experts who have been retained or specifically employed but who are not expected to testify at tral, but only on a showing of exceptional circumstances, e.g., inability to obtain equivalent information from other these sources. (See Fed. Rule Civ. Proc. 26(b)(4)(B).) The scope and application of provisions, including the meaning of exceptional circumstances, appears to be a matter of debate among the federal courts.
The federal rules also require a disclosing pary to supplement its report and other
discovery according to the court's scheduling order or by 30 days prior to tral. A

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supplement is also required to correct the disclosure if a party learns that the information provided was materially incomplete or incorrect in a way that was not otherwise communicated to the other side. The designation of additional expert witnesses is generally not permitted under Rule 26, although a judge may specifically allow them after weighing such factors as prejudice, disruption, and bad faith. There is some conflict among federal courts over whether a designated expert witness may be withdrawn, but in
general a part may be allowed to undesignate a testifying witness if no disclosure or

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discovery has yet occurred. On the other hand, limited discovery may stil be available of any tests or examinations made by the expert witness who has been withdrawn. The mechanics of various procedural matters such as these wil depend on the specific rule in that jurisdiction.

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v.

Preparing The Expert For Deposition And Trial

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Having retained the expert, received a favorable opinion, and properly designated that expert to testify, counsel must prepare the witness for deposition and trial if needed. Preparation is an essential part of the attorney's task in dealing with the expert. While experienced trial attorneys have their own specific methods of witness preparation, most have a similar approach when it comes to preparing an expert for deposition.

To begin with, the attorney must take steps to ensure that the expert is prepared with regard to the substance of the testimony. This normally entails asking the expert about the opinions and the basis for those opinions, discussing any reports, and pointing out the areas of inquiry that the expert is likely to face. The expert should be reminded of any written material in the expert's file that is ambiguous or subject to misinterpretation. Some counsel prefer to take their expert through a mock deposition, particularly when the
expert is inexperienced, but in any event counsel should remember that the preparation of

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an expert is not confidential - i.e., the expert can be questioned about that - and hence counsel may want to be wary of any method that could lessen the expert's credibility.

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Providing the expert with a script or cheat sheet drafted by the attorney is a good example of a preparation method that the trier of fact may view as dubious, and in all likelihood that script or cheat sheet would become subject to disclosure.

Next, the attorney should educate the expert on being a good witness. The attorney should not assume that the expert understands what this requires, even if the expert has testified before. Matters such as maintaining a calm demeanor, avoiding arguments with the opposing counsel, pausing after each question to allow time for objection, etc., should be discussed, particularly given the fact that many depositions are videotaped.
The attorney should remember that while the expert does not have to volunteer information, the expert is nonetheless at the deposition to answer questions about the opinion and is in theory an independent and unbiased witness who does not mind explaining how the outcome was reached. Evasiveness is not an attractive trait in an expert, and providing incomplete or misleading answers at a deposition can result in the expert's testimony. (See, e.g., McGinnes v. impeachment or in the exclusion of
Wesley Medical Center (Ks. App. 2010) 224 P.3d 581, 585-588 (in estate's medical

malpractice action, court properly excluded expert's testimony where no mention was made in his deposition or in pre-trial disclosures of inability of deceased patient to fit into MRI scanner); Deerhake v. DuQuoin State Fair Association, Inc. (IlL. App. 1989)541 N.E.2d 719, 726-727 (in wrongful death action, court properly granted "wide latitude" to impeach defendant's expert whose discovery responses were "seriously lacking" and whose testimony was evasive).)

The attorney should also think about how to defend the expert's deposition. Even experienced attorneys may need to refresh their recollection about defending experts in this context, which might entail reminding themselves of the type of objections that are
allowed in their jurisdiction, i.e., to questions outside the designated area of

testimony, to

inadequate hypothetical questions, etc.

Preparing an expert for trial involves many of the same considerations. One for two examinations, primary difference is that the attomey must now prepare the expert i.e., the direct examination and the cross-examination. When preparing for direct, many counsel prefer to rehearse with the expert in a question-and-answer format, which is often viewed as standard practice by many judges as long as the expert is not working from a
script other than a report that was produced to other side in the course of discovery.

When preparing for cross-examination, counsel needs to pay careful attention to the written material that can be used to impeach the expert or force the expert to make the the expert's own deposition. If damaging admissions, particularly the transcript of expert has to fix an inconsistency, counsel may be better served doing so in the direct examination and pointing that out in a frendly context rather than having the crossexaminer be the first to raise the issue.

Counsel should also remember that the cross-examination may have an entirely different character from the deposition. Many attomeys who take the deposition of an

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opposing expert wil hold back what they perceive to be their most damaging material in an attempt to surprise the expert at triaL. The attorney should prepare the expert for what , could happen, not just for what happened in the past.

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Dealing With The Opposing Expert

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Deposition of the Opposing Expert

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Dealing with favorable experts is only half of what may be required from the attomey who is litigating a trst or estate dispute. The other side of the proverbial coin is
the need to handle opposing experts. Even when the attorney perceives that there is no

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legitimate need for expert testimony, the opponents may have taken a different view of the matter and may come forward with experts of their own.
Experienced litigators wil consider a number of techniques, for dealing with the opposing expert. For example, when the subject matter is dubious, the attorney might fie a motion in limine requesting exclusion of the testimony on the ground that the opinion is not an appropriate one for expert testimony. (See, e.g., Wiliams v. Security Nat. Bank of
Sioux City, Iowa.(N.D. Iowa 2005) 358 F.Supp.2d 782 (various motions in limine

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brought by the parties in trust litigation)). When the expert's qualifications are not sufficient, the attorney might ask to voir dire that expert, i.e., to interrpt the direct examination and question the expert in an attempt to show that the expert should not be testifying at all. (See, e.g., In re Unisys Savings Plan Litigation (3rd eire 1995) 173 F.3d 145, 156 (expert testimony excluded because, among other things, the expert testified untruthfully during voir dire)).
As a practical matter, however, most attorneys end up doing the same thing when faced with an opposing expert - they retain an expert of their own and then try to negate the opposing expert as best they can.
The most important part of dealing with an opposing expert may well be the deposition. The attorney should leam all of the opinions that the expert wil give if called as a witness at tral, including the reasons for each opinion and the facts or assumptions on which each opinion is based. Failure to take a thorough and competent deposition can leave counsel at a significant disadvantage if the matter proceeds to triaL. In jursdictions that do not require a report and mandate the contents, the deposition may be the lawyer's only chance to gain the information needed for trial, and even when a report is provided, the deposition may be critical in letting the questioner expose weaknesses and flesh out any ambiguities or omissions in the report. When deposing an expert, counsel should obtain the expert's file and systematically inquire about matters that include the following:
The expert's qualifications: The examining attorney wil want to know about

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matters such as the expert's education, work history, experience, and previous work as an
expert. The questioner wil tyically ask for a copy of the curiculum vitae, inquire about

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whether it was specially done for this case, and later compare it against any other copies or the expert's website. In general, the questioner wil want to focus on matters that may be relevant to the opinions at issue and that may serve as the basis for a possible attack. In many cases, being an "expert" in a certin subject matter does not necessarily make one an "expert" in every specific issue that comprises that subject matter. The examiner have two things in mind: (1) developing material for voir dire (i.e., objecting at tral wil to the introduction of the witness' opinions on the grounds that he does not qualify as an expert); and (2) developing evidence to suggest that the expert's opinion should not carr weight and/or that he is not credible (i.e., that he is testifying to matters for which he could not reasonably claim to be an "expert," even ifhe was judged to be such for the
purpose of

his testimony's admissibility).

Initial retention: The examiner wil normally want to cover this in detail, including date on which the expert was retained, discussions that the expert had with counsel or the client, the assignment given, payment arrangements, etc. This inay reveal
irregularities such as a changing assignent, an opinion formed before the work was

done, etc.

Work done on the case: The examiner wil normally want to ask about matters such as the time spent on the case; discussions that the expert had with attorneys or others; what material was reviewed; whether the expert was assisted by anyone; whether
the expert contemplates furter work; whether any tasks were discussed but not

penormed; whether the expert failed to penorm something that he usually would have

done, etc. When inquiring about work that was performed, counsel wil want to use the timesheets or invoices, if possible.
Files and report, if any: The examiner should ask what the fie contains,

focusing on notes made by the expert, notes of conversations with counselor parties or those who aided in forming the opinion, and correspondence. If there is a written report, the examiner should question in detail and follow the strcture outlined below. The expert may have carefully crafted the "report" to conceal weaknesses and distract away from salient issues rather than to provide a fair and complete explanation. While some jurisdictions provide that the trial court can exclude the testimony of an expert who deviates from a mandated report, counsel may well find that that practice is more honored in the breach than the observance and that many trial judges allow the expert to deviate in
his testimony, particularly if the report is suffciently ambiguous or complicated. In

addition to questioning about the report, counsel should also ask if there were draft reports and if copies are in the file. If there is no report, counsel should ask why and ask whether a future report is contemplated.

The expert's opinions: This is the heart of the deposition. The questioner should ask the expert to list each opinion he has reached, whether tentative or otherwise, and hence "draw a box" around the expert and eliminate potential surprise. At this stage, the questioner is not asking the reasons for each opinion - the questioner merely wants a limit this expert in the future and give the questioner a sense for the expert's place in the overall context of the litigation. As a precaution, many experienced lawyers
list that wil

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continue to reassert the list of opinions to the expert and ask if he has formed any other opinions that he has forgotten to mention. The examiner's goals are 1) to prevent
surprise at tral; 2) to have the opinions clearly stated to better allow for questioning and

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the expert attempts to offer an opinion at trial that he did not disclose (and even if the cour does not sustain the objection, the cour may consider this as relevant to the expert's credibility and as to whether his opinion should be accorded any weight). Having obtained a list of the opinions, the questioner should then go though each one in detail and have the witness state:
attack; and 3) to set up an exclusionar effort if

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The reasons for each opinion: The examiner wil want to know everything that

went into the forming of the opinion, which wil prevent surprise and help isolate weaknesses for potential attack. If the matter involves judgment, the questioner wil want factors how the opinion was reached, including a list of a detailed explanation of considered and how the expert ranked them. If the expert purports to be applying a standard gleaned from elsewhere, the questioner wil want a foundation for that claim, i.e., the questioner wil want to know where that standard comes from, what materials or sources the expert reviewed to discern it, how he ascertained that purported standard, etc.
All material on which the opinion is based: The examiner wil want to know everyhing that supports the opinion and/or each reason for the opinion, i.e., what documents the expert is relying on, whether he was told to make assumptions, etc.

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Corroboration for each opinion, if any: The examiner wil want to know expert tred to corroborate the opinion or any of its constituent parts, and if whether the so, how.
Material or reasoning inconsistent with the opinion: Counsel wil often ask if the expert is aware of anything that is inconsistent with the opinion. A truthful answer may be iluminating, whereas an untrthful one may be subject to attack and thus help the examiner argue that the expert lacks credibility or that the opinion is not entitled to weight.
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Sub-opinions: The questioner may find that when asked the reasons for each opinion, the expert attempts to justify himself with a sub-opinion, i.e., the questioner may the expert's reasoning is in fact another opinion that the expert did not find that part of
mention when asked to list the opinions he formed about the case. When this occurs, the

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questioner should treat this as a separate opinion and question as above.

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Following this approach in a disciplined manner wil allow the questioner to prepare for tral and help ensure that the questioner has taken reasonable steps to prevent surprise and to elicit material that can be used against the expert later. At the deposition itself, some counsel may want to proceed and cross-examine the expert as if at triaL. The advisability of this depends on the facts and circumstances of the specific case.

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B. Cross-Examination of the Opposing Expert

The most productive lines of cross examination at tral wil depend on the circumstances of the specific case. Most experienced counsel wil consider the following lines of examination:
. Obtaining admissions from the expert
. Attacking the expert's qualifications

. Attacking the facts on which the expert based his opinion, i.e., if the fact or assumption is incorrect, the opinion should have no weight;
. Attacking the expert's judgment, i.e., the expert may have reasoned improperly;

competent experts could disagree on the result; factors that the expert used may be isolated and shown to be wrong; or the expert's testimony may be nothing more than a common-sense argument or legal argument disguised as an "expert" opinion.
. Attacking the expert with hypothetical questions

. Undermining the expert by pointing out mistakes

. Impeaching the expert with prior inconsistent statements.

VII. Conclusion

Expert witnesses are a fact of life in trust and estate litigation, and hence the practitioner should be prepared to deal with them. Experts can run the gamut from the impressive to the shoddy, from the essential expert to the "Bob Dylan weatherman" who will opine on which way the wind is blowing, and yet in each instance counsel must use
appropriate judgment or face consequences that may be adverse. Even experienced

litigators can forget the basic principles when distracted by the flurr of trial preparation they educate or the demands imposed by a full-time practice. Counsel should find that if themselves beforehand and refresh their recollection as needed, they wil achieve better results when dealing with experts and wil avoid costly mistakes.

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