Trials and Tribulations

Winter 2010
TM

The newsletter of the DRI Trial

Tactics Committee

In This Issue
Cybersleuthing Plaintiff s Retained Testifying Experts......... 1
Trial Tactics Committee Leadership......................................... 2
From the Committee Chair:
Letter From the Committee
Chair...................................... 3
From the Publications Chair....... 4
Jury Persuasion In The 21st Century......................................... 8
Tips for Associates to Gain Trial
Experience............................ 12
Trial in 2059........................... 15
Challenging Your Opponents
Expert: Due Diligence
is Key.................................... 17

2010 DRI. All rights reserved.

Cybersleuthing Plaintiff s
Retained Testifying Experts
James M. Dedman, IV
Gallivan, White & Boyd, P.A.
P. O.Box 10589
Greenville, SC 29603
Savvy at litigation and armed with deposition experience, Plaintiffs retained
testifying experts often pride themselves
on their ability to frustrate defense
counsel during a deposition. To effectively combat this smugness, and to ensure all relevant information is explored
during the deposition, defense counsel
must perform a thorough Internet investigation into the experts background
and prior testimony. Practitioners
should not stop at emailing colleagues
for information on a particular expert
or accessing the DRI expert database.
Rather, they should employ additional
measures to ensure that their knowledge
of an expert is as detailed as possible.
Although searches for the online presence of a Plaintiffoften produce mixed
results, similar investigations oftestifying experts may be more likely to yield
information, becausethoseexperts are
actively promoting their practices on the
Internet and attempting to build online

relationships with the Plaintiffs bar.

First Things First: The Experts Official Website

Prior to scouring the Internet for background information on an expert, the

diligent practitioner should first confirm
whether the expert maintains an official
website. If the expert operates such a
site, it can provide a wealth of material
for deposition preparation. If defense
counsel has obtained the experts CV,
the expert may list an official website
on that document or provide an email
address with a domain name indicating
an official site address. If there are no
clues on the CV to identify a potential
official site, then defense counsel should
input into an Internet search engine
the experts name, company name, and
the names of any past companies the
expert has owned or operated. That approach should locate the experts site,
if any. Occasionally, such a search will
yield a reference to the experts former
website which once existed but is no
longer present on the Internet (in which
case defense counsel should utilize the
Internet Archives Wayback Machine
continued on page 4

Cybersluething, from page 1

(http://www.archive.org) to access the

formerly lost site).
Starting with the official site is also
important because experts use them to
hawk their services to Plaintiff s firms.
One Plaintiff s animator explained in
his online brochure (available on his official site) his approach to working with
other retained testifying experts:
ExpertsCommunication and collaboration between animators and
experts: this communication collaboration is paramount to successfully and accurately visualizing a case.
Since the animators final product is
essentially a visual demonstration of
the experts calculations and findings,
that information allows us to be as
true to the experts testimony as possible. After an expert analyzes and
produces the necessary data, we take
that data and apply it to objects and
environments to correspond with the
facts of the case. Once the animation
is complete, the expert reviews it, to
ensure it parallels the testimony.
...
. . . We feel its important that we
work with your existing experts, side-byside, in a team approach, that gives you
the best product in the timeliest fashion.
Such representations about his working relationship with testifying experts
would be critical to any deposition of
the animator. Similarly, other experts
use their websites to post information
about past cases and make other claims
about their experience, most puffing, which can be used to impeach
the expert at a deposition. Occasionally, experts will be deposed about the
representations made on their website,
then remove the website in hopes that
it could no longer provide fodder for
Winter 2010

questioning, but still be stuck with those

prior representations if defense counsel
has located or otherwise preserved the
original website.

tific experimentation and analysis and

provide testimony objectively and without bias . . . based on credible data and/
or scientific principles. Other ethical
limitations abound.
Accordingly, if time and resources
The Experts CV: A Potential Gold
permit, each professional organization
Mine
listed on the experts CV should be
In most litigation, defense counsel will
Googled to determine whether an ethiobtain a copy of the experts curriculum
cal code or other set of guidelines for
vitae, or CV, prior to the experts deposimembers exist. Typically, if such docution. Typically, in an effort to inflate
ments do exist, the association places
their credentials, experts list numerous
them online. It is also helpful to visit
association memberships on their CVs.
these associations websites to determine
In larger cases, the diligent practitioner
how easy or difficult it is to become
will visit the website of each association
a member. Oftentimes, although the
of which the expert purports to be a
organization in question may have a
member. Although some associations
prestigious sounding name, the only
are fronts for Plaintiff s experts and offer
obstacles to membership may be a brief
little information of value, manyassoapplication and $25.00 fee.
ciationspost their membership requireFinally, experts traditionally list their
ments and ethical codes on theInternet.
publications on their CVs, although
Sometimes, the associations code of
often those listed are out of print or not
ethics will include specific guidelines for
readilyavailable.However, odds are that
experts to follow when testifying durused copies are available oneBay,Half.
ing litigation. Accordingly, thesecodes
com, oreven the used section of Amamake excellent deposition exhibits.
zon.com. Whendealing withfrequently
For example, some human factors
encountered experts, these publications
experts are members of the Human Faccan beessential for impeachment at
tors and Ergonomics Society. This orgatrial.
nization publishes its own code of ethics
setting forth the types of representations
Locating Past Deposition Trana member may make and promulgates
scripts
rules of conduct for members engaged
as expert witnesses in litigation. This
Nothing is more helpful than past decode, perhaps more detailed than those
position transcripts of an expert, but
of other entities, cautions members to
locating them may sometimes prove
avoid sensationalism, exaggeration, and difficult. In federal cases, one potential
superficiality that constitutes deception, source of information is the required
and must similarly avoid any misreplist of all other cases in which the expert
resentation in all public statements,
has testified at trial or deposition for the
presentations, and submissions to mass
previous four years. However, Plaintiffs
media. It also requires that members
experts avoid complying with the spirit
maintain the highest standards of scien- of this rule by providing only the name

Trials and Tribulations

of the case and little other identifying

information. Having only the case
name makes it difficult to ascertain the
state in which the case was filed and
the defense attorney who defended the
lawsuit. However, inputting the name
of the Plaintiff or lawsuit into Google or
even a Westlaw Docket Search can occasionally locate more specific information. Once the practitioner learns more
information about the lawsuit, he or she
can contact theclerk ofcourt of that
county to discover who defended the
lawsuit. Upon learning that, the practitioner can request from that attorney
a copy of the experts prior deposition
transcript.
It is particularly helpful to find deposition transcripts of experts from earlier
in their careers, before they learned
how to testify effectively regarding their
underlying credentials. For example,
one Plaintiff s railroad liability expert
purported at his depositions to have
decades of experience in the railroad
industry. The basis of his claim was his
history with ashort linerailroad in the
1980s and a larger, Class I railroad in
the late 1980s and early 1990s. Defense
counsel uncovered several late 1990s
depositions ofthat expert in which he
made a startling number of concessions
regarding his lack of railroad experience in the 1980s. In recent depositions, the expert had been boasting of
nearly twenty years experience in the
railroad industry (which naturally included his time as a retained testifying
expert). However, the earlier deposition
transcripts revealed that half of his purported industry experience - the time he
spent on the short line was not as significant as he would later claim. For the
short line (which was actually a tourist
railroad), he worked only as a volunteer,
part-time, mostly on the weekends, on
6

less than thirty miles of track during an

operating season of only May to December. Nevertheless, on his CV and
in his testimony, the expert maintained
that his time on this railroad constituted
eight full calendar years of experience.
By theearly to mid-2000s,however,
the experthad learned to spin these
credentials, thereby avoiding the need
to make such concessions under oath.
Although his underlying experience had
notchanged, his ability to characterize
the experience hadevolved. The older
deposition transcripts were helpful, simply because that testimony was closer in
time to the original experience, thereby
more likely to be accurate.
Searching News and Blogs

Plaintiff s experts love to be quoted in

the media. Thus, it is critical to search
for their past media interviews. Although many times certain articles may
not be posted on the Internet, subscribers to Westlaw have access to its News
database. This resource is extraordinary
and canyield significant results. For
example, in one case, it was learned
thatPlaintiff s purported liability expert
had been involved in an automobile
accident in which he ran a stop sign
and struck a teenage bicyclist. Perhaps
not relevant in most circumstances, in
this case, the expert in question had
been retained to offer opinions about
the actions of a railroad crew that he
contended failed to properly prevent an
accident. Although the article was not
available on the Internet proper, it did
surface on the Westlaw News search,
which produced a 1997 article identifying the expert by name, age, and street
address. It reported that he had been
cited for failure to use care in turning
and failing to stop for a person in a cross

Trials and Tribulations

walk. The same search yielded a more

recent article chronicling the experts
resignation from his citys liquor board
and his altercation with a fellow board
member in the town hall parking lot,
during which he lashed out at [the colleague], calling him obscene names.
When questioned about these articles,
the unappreciative expert was taken
aback and momentarily stunned.
Additionally, in the largest commercial litigation case in South Carolina,
the Plaintiff, a large textile company,
retained an expert animator who had
previously given a number of media interviews. In one, he candidly discussed
the number of times his animations
had been excluded in prior litigation.
He noted that in 15 years, thats only
happened twice. In one case, a truckdriving witness switched stories while on
the stand. . . . So once he changed his
mind, we could not use the animation. .
. . In the other evidenceand thus the
animation based on itwas thrown out
because of a lawyers failure to properly
document. . . . As this news article
originally appeared in a newspaper that
did not have its own website,this interview would not have surfaced in a basic
Internet search and was instead located
via Westlaw News.
Another helpful technique, particularly for frequently encountered experts,
is the Google News Alert. Practitioners
would be surprised to learn how often
Plaintiff s experts author Internet message board posts, letters to the editor,
and other articles readily available online. There is no reason to regularly
search the Internet when Google News
can perform the task. Practitioners can
set Google News to email them an alert
which will link to any recent news story
or blog entry mentioning a particular
experts name. Multiple news alerts
Winter 2010

can be set to capture articles andInternet news coverage regardless of how

the experts name appears therein. For
example, if the experts name is William Throckmorton, and his consulting firm is named Plaintiff Testimony,
Inc., alertscould be set for William
Throckmorton, Bill Throckmorton,
Plaintiff Testimony, Inc., or even the
more expansive Throckmorton Plaintiff Testimony, Inc. A search can be
set to Comprehensive, and thus, be
made to search not just news outlets but
the entire Internet, which would include
blogs, miscellaneous non-news related
websites, and official corporate and legal sites which may not be indexed on
Google News. Further, practitioners
can set the frequency of their searches to
daily, weekly, or even As-It-Happens,
which means as soon as Google locates
the site on which the searched terms appear.
Past Appellate Decisions

An experts name should always be

plugged into Westlaw or Lexis to locate
potential appellate opinions discussing
exclusion under Daubert or similar state
case law. As different courts refer to experts in different ways (and by different
variations of the same name), the best
way to search for an expert in Westlaw is
to utilize a search as follows:
Will! w/3 Throckmorton
Will! Throckmorton
Throckmorton w/3 neuropsych!
Such searches ensure that defense counsel will uncover any result regardless
of how the court has chosen toname
orcharacterize the expert. Once the
practitioner has located afederal appellate or trial court opinion referencing the expert, he or she can log into
PACER and find the original motion

Winter 2010

seeking exclusion of that expert and the

Plaintiff s response. Such motions will
typically have an earlier version of the
experts CV as well as relevant excerpts
of theexpertsreport and deposition
transcript. Plus, having the original
motion allows counsel to contact the defense attorney directly to obtain a copy
of the experts deposition as well as any
other file materials that attorney may
have assembled on the expert to prepare
the motion.
Licensure Confirmation

Most retained experts have some type of

license or certification which can be easily confirmed on the Internet. Whether
they are medical doctors, human factors
experts, lawyers, or psychiatrists, the experts must maintain their licenses, board
certifications, or other certifications,
so it is best to visit the website of the
licensing entity to confirm the license or
certification remains valid. (This is also
a wise approach when deposing treating
physicians, as well). Occasionally, if the
licensing entity is a governmental unit,
a Freedom of Information Act request
may prove fruitful. However, most of
the time, licensing entities offer the
public the ability to verify a license on
their websites. In one case in which the
Plaintiff was attempting to testify as an
expert regarding her medical transcription businesss alleged lost profits, it was
learned that her nursing license which
she had used to promote her new business - had been suspended for three
years following her arrest for surreptitiously taking Darvocet pills from a past
employer. The initial Internet research
confirmed the suspended licensure,
while a subsequent FOIA request produced the official order of the licensing
board suspending her license. Thus,

Trials and Tribulations

such searches can be critical when the

expert relies on a license to offer opinions.
Conclusion

In sum, a firm grasp on the experts

background, former testimony, and
past indiscretions serves to inform the
practitioner of both potential pitfalls at
the deposition as well as useful nuggets
of information which can be used to
later impeach the expert. Additionally,
although the information may not prove
entirely relevant to the case at hand,
revealing to the expert at his deposition
that you know more about his or her
past than the typical defense attorney,
may provide an incentive for the expert
to be more forthcoming for fear of such
impeachment.