May the Record Reflect
May the Record Reflect
74. Handling Experts at Trial: Can't Live With Them, Can't Live Without Them, with Gene Tanaka
From forensics to financials and the medical to the technical, trial lawyers rely on expert witnesses to help fact finders understand complicated concepts and issues in their case. But dealing with experts is an expert technique in itself, so in this episode NITA Program Director Gene Tanaka breaks down the battle-tested process that has brought him success. First, he lays out the standards for expert testimony and traps to avoid, then shares steps for direct examinations, issues in cross, and persuasive techniques.
Topics
04:20 Why experts are important
05:54 Breadth of expert opinions
07:24 Expert traps
11:44 Standards for expert testimony
15:28 Five steps for direct examination: Introduction and teaser
17:48 Qualifications
20:10 Red flags in an expert’s background
21:28 Opinion
25:24 Basis for opinion
27:39 Difference of experts’ opinions
28:50 Conclusion
30:19 Persuasive techniques
34:10 Conducting cross
42:06 Signoff questions
Quote
“One of the things that we [attorneys] often do is we rely too much on credentials. We look at an expert and we think, ‘Well, this person has this certification and this level of education, and therefore they must be better than the other person who doesn’t have that.’ But you know, a lot that is just lost on everybody – the trier of fact. They can’t tell the difference between one credential or the other. But what they can tell the difference is whether someone is likeable and whether they’re understandable.” Gene Tanaka
Resources
Gene Tanaka (LinkedIn)
Expert Testimony slides (PPT)
Modern Trial Advocacy: Analysis and Practice (book)
Federal Rules of Evidence with Objections: As Amended to December 1, 2023 (book)
Expert Testimony: A Guide for Expert Witnesses and the Lawyers Who Examine Them (book)
Effective Expert Testimony (book)
On today's episode of May the Record Reflect, I think maybe the biggest trap I've I've had to wrestle with is if you don't understand what your expert is doing and the lead up to their testimony, and it's very easy to just not have time, not have the ability to understand them, and being not wanting to admit, you just have no idea what they're doing. So you think, well, they're the expert, I'll rely on them. And then if you do that, you might find out that they get torn apart because really they were making mistakes. And so it's really critical that you develop an understanding of what the expert's doing. So as you can see, there's a lot of things that can go wrong with experts, in addition to the fact that you do need them.
Marsi Mangan:That was Gene Tanaka, and this is May the Record Reflect. That's right. My guest today got us started NITA as a program participant. In the fall of 1986, Jean Tanaka was a young trial lawyer who was sent to Boulder, Colorado to attend our Rocky Mountain trial skills program. Now, back then, NITA programs were much longer, anywhere from two to four weeks in length, if you can even comprehend that. What can we say? Times were different and the litigation life cycle was quite a bit slower. But what I think is really cool is that Gene experienced that whole on your feet learning by doing thing from both sides of the classroom. As a practicing attorney, Jean was an environmental litigator at Best, Best and Krieger in Northern California for 39 years. His practice was focused on toxic cleanup and water law litigation for public agencies. He handled cases in federal and state courts all throughout California in matters involving the Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the Clean Water Act, and more generally, California Water Law. Since the late 1980s, Jean has trained trial lawyers across the United States and in Japan, Northern Ireland, Switzerland, Austria, and Australia. And now, on an app on your phone, here's our interview. So my guest today is Jean Tanaka. I'm so glad to have you on the podcast.
Gene Tanaka:Thank you, Marcy. It's a pleasure to be here.
Marsi Mangan:So we met for the first time at the program director's meeting back in January, and we hit it off so well that I wanted to have you on the podcast. And when I when I invited you on, I asked if there was a particular topic you wanted to talk about, and you came up with not just the topic, expert witnesses, but you also had a title in mind. Expert witnesses can't live with them, can't live without them. So what does that title mean to you?
Gene Tanaka:Well, you know, I've always had a sort of a fraught view of experts. On the one hand, uh in today's court, you absolutely have to have expert witnesses in any case of complexity. But the other side to that is, as we'll get into in more detail, working with experts presents a lot of traps and problems. And so there's a tension for me when I think about expert witnesses, and that's what I was trying to convey.
Marsi Mangan:So why are experts so important to a case, especially the complex cases you just mentioned?
Gene Tanaka:Aaron Powell You know, I've come up with at least three reasons. People may have more, but uh first, um I think with the increasing complexity of law, science, social sciences, organizations, and all the transactions that that involve those groups, um, everything has become more complicated, and that has to be explained. And I think most of the audience as lawyers will appreciate that their own practices that they've been looking at have gotten more complex over time, and that sort of captures what's going on in society generally. Related to that, a second reason is um if the other side has an expert witnesses, you are just gonna be completely exposed if you try and develop your case to argue with those experts through evidence. It's just too hard without having an expert to help rebut their expert. And finally, um, experts can tie your case together. They're able to incorporate not just the facts that they've experienced, but all of the relevant facts in your case. And then they can draw conclusions about those facts. And so it provides a more holistic approach to your case.
Marsi Mangan:So we really can't live without them, is what you're saying.
Gene Tanaka:Unfortunately and fortunately, we can't.
Marsi Mangan:So what is the breadth of expert witnesses?
Gene Tanaka:Yeah, you know, I think if you look at the breadth, you kind of appreciate uh how they can help you tie your case together. Um, first of all, and obviously they can explain complex data, test results, statistics, accounting information, demographic data, the list goes on.
Marsi Mangan:Right.
Gene Tanaka:But in the way they look at it, they can look into the past. They can reconstruct past events like the causes of accidents, they can look at voting patterns, they can look at disease patterns. And then on the other side, they can look into the future and they can predict natural resources harm, earthquakes, economic damages, and many other events that will take place down the road. And then tying it all together, they can stake conclusions about all of this information. They can talk about what causation, what caused certain things to happen, they can talk about damages, and importantly, they can talk often in many cases about the standards of care. So in many jurisdictions, um doctors can provide the standard of care for medical malpractice, attorneys can provide the legal standard of a care for legal malpractice. So when you think about all those different things that an expert can do, it really is very broad.
Marsi Mangan:I heard you say traps a minute or two ago. Can you talk about some of the traps that expert witnesses can pose to your case?
Gene Tanaka:Yeah, th this is why um I struggle with expert witnesses. Uh, one of the first things is that an expert has to explain uh what they're what they're testifying about. And often they can be too technical, or they just may not have the speaking skills to break down complicated ideas in a way that you and I can understand them. There's another side that often gets overlooked, and that's the likability of the expert. The judges and the juries that are deciding your case are just like every other person, the likability of a witness impacts the way they view their testimony. So it's important that your expert come across as likable. One other problem is when experts are overconfident. Sometimes when you first talk to the expert about hiring that person, they will oversell their skills and their ability because they want to get hired. But that comes back at you when they actually have to testify and you find out at the last minute that they really have oversold themselves. Other experts, and this is not something unique to experts, because they're often very good at what they do or perceived as being very good, they can be arrogant. And that arrogance comes through and it's just not very likable. The flip side to this is experts that lack confidence. Um many times experts live in a in a world that's gray, that nothing is very simple because they're looking at a very complicated world. So it's hard for them to reach a firm conclusion. And when that happens, you're often stuck with an expert that's not really supporting your case. Other times, experts are very tentative because they have their reputation to think about and they don't want to alienate other people in their profession, especially if it's the opposing expert. And then finally, if they're not used to being in in court and being cross-examined, that can be a very daunting prospect. And sometimes their their testimony will kind of kind of just crumble as they get attacked by the opposing counsel.
Marsi Mangan:It's kind of a lot to manage.
Gene Tanaka:It it is on the one side. You know, and then it it's not fair to blame the experts alone. I mean, the attorneys, we make mistakes too. One of the things that we often do is we rely too much on credentials. We look at an expert and we think, well, this person has this certification and this level of education, and therefore they must be better than the other person who doesn't have that. But you know, a lot of that is just lost on everybody, the trier of fact. They can't tell the difference between one credential or the other. But what they can tell the difference is whether somebody's likable and whether they're understandable. And then finally, I think maybe the biggest trap I've I've had to wrestle with is if you don't understand what your expert is doing and the lead up to their testimony, and it's very easy to just not have time, not have the ability to understand them, and being not wanting to admit, you just have no idea what they're doing. So you think, well, they're the expert, I'll rely on them. And then if you do that, you might find out that they get torn apart because really they were making mistakes. And so it's really critical that you develop an understanding of what the expert's doing. So as you can see, there's a lot of things that can go wrong with experts, in addition to the fact that you do need them.
Marsi Mangan:And you play your part too. It's a very symbiotic relationship.
Gene Tanaka:Yeah, it is. It's a very good way of putting it. Um if you're working well with your expert, it's not something that you just hand them assignment and then come back to them the day before they testify. You're working with them on an ongoing basis.
Marsi Mangan:So, whenever possible, I always like to ask the guest about the standards that must be relied upon, the rules and the case law that you need to follow. So, what are the standards for expert testimony?
Gene Tanaka:Yeah, you know that that's a good question because um with the scope of what experts can do and how much range and latitude they have, the courts recognize they need to put standards to make sure the experts don't go off the tracks and do too much. Um I'm gonna speak in terms of federal court. A lot of these same requirements have been mirrored in state court, so you want to know what your jurisdiction requires. But in general, even in state court, and certainly in federal court, there's really, I think, three things you want to think about. First is the area of expertise. Um, this is Federal Rule 702, and it's also Daubert, which many of you have heard about, and I won't get into the citations because you'll get a copy of the of a PowerPoint that lays out these citations. But under the areas of expertise, you need to make sure that your expert is first and foremost qualified to testify in the area. You can't have a pharmacist talk about prosthetics or talk about room breaks.
Marsi Mangan:Yeah.
Gene Tanaka:Similarly, that expert needs to use sufficient facts and data. They have to rely on reliable information to base their opinions, and then they have to take that information and reliably apply the type of principles and methods experts in their field use. So for areas of expertise, think of qualifications, sufficient facts and data, and reliably applying principles and methods. Now, a second standard is that the scope of the expert's opinion may include the ultimate issue, but no legal conclusions. Well, what does that mean? It really means you won't get the expert to say this person is liable or that person is liable. But as I mentioned earlier, the expert can say this is the standard of care for doctors, or this was the cause of the accident. So they can say a lot, the ultimate issue in terms of that, but not the legal conclusion. And then finally, um there's a standard regarding what they may base their opinion upon. They may use inadmissible information as long as it's a type that's reasonably reasonably replied relied upon. So for example, a doctor or a a scientist can take a look at uh reports in a certain area that support their opinion, but it's hearsay. So it might not be admissible. And therefore it's not they can rely on it, but the problem is they may be barred from disclosing it. And that gets there's a standard as to when and when they can't disclose it. But the easiest approach and the safest approach is to find an independent basis to make those that information admissible. So that means um you've got to think of ways in terms of using requests for admissions or depositions or certifications from uh public agencies to get that information in an in an admissible form. So therefore you can not only rely on it but disclose it as well.
Marsi Mangan:So that gives a really good foundation for us to start talking then about direct examination of experts. And you recommend a five-step process.
Gene Tanaka:Right. Now, this process is not something I came up with. Oh, like a lot of us, a lot of us at NITA, we all take from each other, and NITA over time has has come up with a five-step process. Some people may call have variations of that, but the core of it is number one, to introduce the expert and provide a teaser for their testimony, two to explain the expert's qualifications through direct exam. Three, to get the expert to state it his or her opinion, four to state the get the expert to tell us the bases for his or her opinion, and five to wrap it all up with a conclusion.
Marsi Mangan:Okay, well, let's start out with the intro and the teaser. I want to hear about this teaser, right?
Gene Tanaka:All right. Well, step one is, as you said, introduction and teaser. So you would start with a question like, please introduce yourself to the court. And here you want the expert to give the court one or two sentences about who they are to speak slowly, to speak speak clearly, and to speak in a friendly fashion. So for example, they may say, Uh I'm Dr. Smith and I'm an expert in accident reconstruction, and I'm here to talk about that. And then you want to ask the teaser question. Are you here to state an opinion regarding the cause of the car accident on June 6, 1999? The reason you state that, you're not stating the opinion, you're just stating what they're here for. Because right now your expert hasn't been qualified, so can't provide that opinion. But what you want to do is first of all create interest. And second of all, it puts in context all of the other things that the expert's gonna say as you develop that expert's testimony.
Marsi Mangan:Okay, so the intro and teaser seem pretty straightforward. Let's move on to step two, which is qualifications.
Speaker:You know, and qualifications can also be pretty straightforward. Here's a laundry list of things you want to think about that are important on qualifications. You want to talk about their education, any specialized training they have, professional experience, expert witness experience, and then a miscellaneous list of various matters if they have relevant expertise such as publications, licenses, awards, teaching, and anything else about their background that's important. The way you tease this out is you tie each qualification to their opinion. So you would say, Dr. Smith, I want to talk to you now about your background. What part of your education had a direct bearing on your opinion? Blah, blah, blah, blah, blah.
Marsi Mangan:So that's giving a headnote, right?
Gene Tanaka:Exactly, a headnote and then tying it, the qualification, which is education in this case, to their opinion. So instead of them talking about the the uh the art degree they got, they're gonna only talk about the science degree that's relevant or the engineering degree. And then you do that with each of the qualifications. Let's turn now to your professional experience. Specifically, what part of your professional experience had a direct bearing on your opinion, and so on down the list of qualifications. And then when you finish that all, depending upon the jurisdiction you're in, you may be required to tender the expert to the court to have the court say, Yes, this expert can testify in the following area. And so you would say, I would like to t tender Dr. Smith as an expert in the cause of the accident that took place on June 6, 1999. That's in jurisdiction. That requires it. Other jurisdictions don't require it, and they allow you to just kind of roll forward into the rest of your examination. So you need to know what the requirements are.
Marsi Mangan:So those are the things that you're looking for in an expert. Are there any red flags that you like to keep an eye out for in an expert's background?
Gene Tanaka:Yes. Before you engage an expert, you want to kind of look into their background. And uh at the risk of being a little glib, uh I've seen quite a few experts that have had resumes over a hundred pages. And for me, that's always kind of a red flag because I can't imagine how you you would have a hundred pages of information that is so important that you need to put on your resume. But that aside, one of the most important things you can do is is uh West Law or a LexusNexis search of court records uh of that particular expert, of the particular expert you're considering, to see if there's ever been any orders that have limited that expert's testimony, and if so, why? Because um that's always a a concern, not only because it might tell you that this expert gets ahead of themselves, but also it uh it's something that you can bet the other side is gonna throw back at your expert. And if you're gonna take that person, you need to be prepared to explain it.
Marsi Mangan:Okay, are we ready to move on to number three, step three?
Gene Tanaka:Yes. So this is ri really the important part where you're putting in the opinion. And when you do that, you want to kind of give it the emphasis that it deserves by giving it a head note and asking the question in a way that will grab the attention of the court, whether that's speaking loudly, whether that's speaking softly, and certainly by speaking slowly and clearly. So you would say, um let's talk now about your opinions in this case. Without telling us the grounds, what was your opinion whether the uh accident was caused by a defect in the plywood? And the way by doing that, when you don't want the grounds, because the expert will sometimes go on and give the whole opinion and all its bases, and you want to kind of carve those into little bite-sized chunks. So right now you just want the opinion. So it's important to say, without telling us the gr the grounds, please tell us what your opinion is on whether the accident was caused by a defect in the plywood. And hopefully the expert says, well, it was the plywood, or maybe it should be what was the cause of the defect of the accident. They could say it was a defect in the plywood. The important thing is their opinion, and you're gonna want to vet this with your experts, should be tied to the case facts. It's not over broad, and it's within their expertise. They stay in their lane. Now, in some jurisdictions, um it you also have to ask it in terms of it, is that opinion to a reasonable degree of medical or scientific certainty? So it really depends upon what your jurisdiction requires. And then you want to think about whether after that opinion is expressed, whether you want to distinguish the opinions of the other side.
Marsi Mangan:When you work with an expert, would you rather be dealing with someone who tells you exactly what you hope to hear for your case? Or is it better to have someone who comes across as kind of independent and drawing their own conclusions, which is a little risky?
Gene Tanaka:Well, so I'm gonna dodge and say yes and no as to both questions. You bet I want the expert to say what I want that expert to say. I I want it done my way. Now, the problem with doing it that that way, though, is if you just force your way on the expert, then and it's not really sound because they're really doing what you want, not what the science requires, then it it's gonna come back to you because they're gonna get taken apart. So that's the first question. You want an expert that's gonna work with you and try and reach the opinions you want, because if they're not gonna do that, you're just gonna be in a terrible position defending an opinion that really doesn't help you that much. Now, your other question is sort of the flip side of that. I do want an expert who tells me what that expert thinks because I want to know what the problems are and I want to be able to deal with it. So that's the the part where I agree with I want an expert that that uh tells me what they really think. But then to counter contradict that, but in the end, I need them to say what I need them to say. So, Marcy, it's never really easy. I want an honest expert, but I want them to end up where I need them to end up.
Marsi Mangan:As always, it depends, right?
Gene Tanaka:Right. That's the shortest, simplest answer, right?
Marsi Mangan:So let's talk about the basis for opinion, which is step four.
Gene Tanaka:All right, so this is where you really get into the persuasive part. If you've stated had your experts state the opinion clearly, now you're gonna persuade people that that opinion is the right opinion. And so what you're gonna do is you're gonna say, now, Dr. Jones, uh I want to talk about the investigation you did in this case to reach your opinion. What work did you do to reach your conclusion? And have them explain the work that they did, you know, the studies, the tests, the interviews, the reports they read. And then you say, uh well, what is your basis? What is the basis for your opinion that uh uh the patient suffered from an aneurysm that caused the patient's death? And that's where they're gonna explain the logic of what they did. Right? Because they're telling you what what they based on their investig they told you the investigation, now they're telling you what they base it on, and then you say, what facts or calculations did you perform or review that support your opinion? Another question you want to ask is what assumptions did you make to reach your conclusions? And finally, another good question to ask is what do other experts in your field rely upon to reach this conclusion? And there's probably other questions you can think of as as you either have learned from personal experience or you learn as you as you study your case, but those are some of the main questions you want to think about.
Marsi Mangan:So those are all the grounds then that you mentioned in the previous step that you don't want them to answer in step three, but you start delving into in step four.
Gene Tanaka:Right. And you hope that by the time you finish, the expert has explained uh the conclusion, the work, in such a way that it makes complete sense, it's completely understandable, and it can only be the right answer. That's where you want to end up. It's never that easy, but that's the that's the ideal.
Marsi Mangan:I'm curious about how you would manage a situation where you have a dream expert on your side, but then so does a opposing counsel. And then you've got these two dream experts who have reached different conclusions. What do you do?
Gene Tanaka:Well, you've kind of put your finger on the entire nut and bolt, the nut of what we're dealing with here. You want to try and use these tools that we're talking about, and some more that we'll get into, to make your experts' opinion look a little bit better and their experts' opinion look a little bit worse. But you you're absolutely right. This is hard because it usually isn't a clear-cut case. Those cases settle. The cases that go to trial are the ones where that both sides have good experts and they reach good conclusions, and it's just not that easy. And so you're kind of going into a fight and you just gotta fight and get every little inch you can.
Marsi Mangan:And you have the added pressure of doing it in front of an audience. All of people making decisions about it.
Gene Tanaka:Yes, or about you. Yeah.
Marsi Mangan:All right. So I think that the next and final step is the conclusion, which makes sense.
Gene Tanaka:Right. So now you've developed the opinion, you've stated the opinions, explained how the the opinion was formed, and then you just kind of want to give a wrap-up. Um, and you you kind of want to restate the question in a the conclusion with a question that gives a different perspective on the same thing. You know, you can rely on the expert's experience or the weight of the evidence or any notable fact. But if you're act if you've worked with your expert, you can simply say, uh, how certain are you that um this is an example of the spread of this disease uh through the water system? And the expert will hopefully say, uh, I'm absolutely certain because I've looked at a thousand of these cases and I've never seen something that's so clear because of blah, blah, blah. You know, and you can also say, well, tell the court why you reach your conclusion. And if you've worked with your expert, they will have the same conclusion stated from a different angle, which kind of sums everything up and helps drive the point home.
Marsi Mangan:So these five steps I want to go out on a limb and say are the objective nuts and bolts of direct exam, kind of the science, if you will. Would you agree with that?
Gene Tanaka:I think that's right.
Marsi Mangan:But we know that trial advocacy is both a science and an art. So, in your opinion, what is the subjective art of direct examination?
Gene Tanaka:Yeah, you know, I think that's where we start talking about persuasive techniques. You're right, um, Marcia. We've been talking now about the steps, the concrete steps you want to take and how you how you how you make them. But the techniques, there are also concrete techniques, but that's where persuasion comes in. So some of the things that you can do to make your experts' presentation more persuasive is to make sure the experts using plain language. Um, you know, with complicated areas, there's a lot of jargon, a lot of technical terms. And it it's okay uh as long as you don't do it too much, if you simply interrupt them and just say, hang on one second there, sir. Would you please explain what you meant by the term you just used, blah, blank, you know, or wait, would you tell us what that means? And that way you can make sure that they don't get too far down the explanation when the rest of us have already we're lost the term they used. Visual aids are are are really important. Um I I come from a time when it used to be you'd write on a a whiteboard or butcher paper, or now they have the post-its, the huge post-its you put on the wall and poster boards, but um in courtrooms today, especially federal court, um you can use PowerPoint. Um it's you gotta work with the the court clerk, you gotta work with the j the judge's local rules, but um often PowerPoint is the way you're allowed to present everything, and that sure helps on an expert. Experts can also tend to narrate, they just get going, and it's like a little script that they're reading off of. And so it's important to break it up. Just say, all right, let me stop you right there. We you've just been talking about what caused the accident. Now you're gonna I as I understand it, you're gonna tell us about X. Are you testifying to an extent? So you gotta be careful, it's gotta be limited. You know, maybe it's more brief. You'd say, okay, you were talking about causation, let's talk now about uh the harm. And then that's a minor head note, and the court will allow it probably, if it's necessary to keep everybody on track. You want to use subparts. Um let's talk about the three ground and enumeration related to that. Tell us the three grounds that that l cause you to reach this conclusion. And now tell us how each step led to the next. Uh another thing is what we call inoculation. Now Dr. Smith, you never visited the accident site. No, I didn't. Um do you would that how do you think that affected your opinion in this case? And the expert will hopefully say, I don't think it changes it at all, and here's why. And then you can have you, the attorney can't, but you want your expert to use examples and analogies to help explain and break down complicated ideas.
Marsi Mangan:So you really what you're describing is just taking the fact finder by the hand and leading them through really complicated material so that they can digest it and make decisions accordingly.
Gene Tanaka:Yes, as you said it, that's perfect. The reality is really hard, but that's exactly where you want to go.
Marsi Mangan:All right. So the last question, but not the least, that I have for you is what are your secrets to conducting cross of an expert?
Gene Tanaka:So cross-examination is always considered very risky because you're not playing in your neighborhood. You're playing in their neighborhood, and they're the experts, you're not. So you you've got to be really careful. And if there are seasoned experts, they're just waiting for you to step on your toes. So you can start out at the beginning by challenging their credentials. Uh and that means it doesn't necessarily mean you're going to get them disqualified from testifying at all. If you're going to do that, that's usually going to be something you're going to do in a written pretrial motion. But what you can do is you can limit the scope of their expertise. You know, you can say, Doctor, you're an expert on the on this particular disease, but you're not an expert in epidemiology, which deals with the spread of that disease through a large population group. You know, or, Doctor, you've never examined a patient in this area. You've written about it, but you've never actually physically examined a patient. So you're limiting what they do. And especially it's helpful if your expert has. Say, now, doctor, you are not an epidemiologist, which we've just discussed. However, um, you would agree that my expert, Dr. Smith, is an epidemiologist, yes, and you contrast that with your own experts' expertise. The other thing is you can try and obtain favorable information from another expert. Um, you know, Marcy, if you've got an expert that tells the truth and and uh says exactly what they believe is the right answer, then you can get them to say a lot of positive things sometimes. You can say, Well, um, Dr. Jones, you you're familiar with my expert, Dr. Smith, aren't you? Um, and you would agree that he is an expert uh in COVID-19. And yes. Um, and in fact, you both agree that COVID-19 causes the following symptoms. That's what my expert says, that's what your expert says. And you just kind of, or that's what you say, and that you just kind of get them to confirm where your expert's opinion is correct, and then you build from there to where you disagree with them. Now there's a last area is it's usually not that useful, but it's whether you want to challenge impartiality. Um, one of the areas that attorneys try to attack experts for, especially if they're particularly if they're paid experts, is they try and imply the expert paid uh to provide the opinion. And so, you know, they'll say, well, you're getting paid $600 an hour uh for reaching this opinion that my client is responsible for the cause. It's not going to work usually because A, your experts usually being being paid as well.
Marsi Mangan:Right.
Gene Tanaka:And secondly, I think people have gotten used to the idea that experts are paid. It's really whether they're persuasive and likable. That's what really matters. And so I'm not sure you get far with that, uh, unless it's something really extraordinary. Um what you can look for is sometimes um experts are captives to the attorney uh or the particular party that they've testified for um uh Tesla 30 times in the past. And surprise, every time they've done that, Tesla's not been liable. You know, or they've worked with uh attorney Jones um 15 times in the past. And so those are position, those are relationship biases that you might be able to take advantage of. And similarly, there's a thing called positional bias. You know, in certain areas like uh employment law, they may only testify for uh the company or only for the plaintiff. Uh now unfortunately I think it's it's that even has its limitations because that's what that's how the field works, I think. I don't do employment law, so I'm sure your your folks will correct me if I'm wrong. But uh sometimes, yeah, they do testify um for one side or the other, but their response can be, well, I do, but not if I don't think they're right, and those are the cases I turn down. So, you know, you just it's not always easy to get that, but sometimes something will stand out to you. Marcy, the other things you can do is you can use treatises. You can get the expert to agree that a treatise is um respected and followed in the area in which they're testifying. And then what you do is you point out everything that they did that did not follow the treatise as they should have. Um similar, you can point out things that they've omitted. Um, and if you've got, quote, an honest expert, uh, you can challenge any degree of uncertainty because if they're being really honest, they may only be 90% certain. So, you know, one chance in ten that they're wrong. Um if you it gets hard, but if you can show that they're depending upon certain assumptions, then while you on cross may not be able to attack those assumptions, you can get your expert to get up there and point out why that assumption is wrong. And if the court or the jury believes that that assumption is wrong, then the opinion has to fall too. Or um you can similarly confirm that the expert, because in these complicated cases, they rely on other experts on their team to help reach the conclusion. So if you can challenge any of the other testimony, then the expert you're you're cross-examining that expert's testimony is a suspect. So there's there's steps you can take to try and and cross-examine and limit the other side's expert.
Marsi Mangan:Yeah, this was really great Jean. Thank you so much for coming on board to talk about how to work with experts in receiving testimony.
Gene Tanaka:Thank you, Marcy. It's it's been a pleasure. It's uh it's a complicated but I I think it's interesting and I hope uh our audience will think so as well.
Marsi Mangan:You mentioned earlier that you've put together a slide deck and so I've got that and I will leave a link for it in the show notes so that listeners can download that. It kind of reviews everything that you've spoken about and gives additional resources. And some of the resources that I want to mention are actually NITA books. We publish three or four great books that would be perfect to add to your library and I'll just describe them very quickly. The first two are rather general classics. One is Loubette and Laure's Modern Trial Advocacy analysis and practice another is the Federal Rules of Evidence with objections that is a fantastic book. And then we actually have two books that are all about expert testimony. The first one is Steve Loubet again writing with uh Elizabeth Bowles who is a law professor and that's called Expert Testimony a guide for expert witnesses and the lawyers who examine them. And then secondly Effective expert testimony with Malone and Zweir. So those are some of the books that I will link in the show notes if you're interested in continuing your deep dive into expert testimony.
Gene Tanaka:Thank you Marcia I think that would be very helpful. Now I've got two quick little sign-off questions as always so if you're game I will ask shoot okay Jean what is your dream vacation you know I I uh I have to I'll admit to a little bit of embarrassment um the world of Netflix has opened up areas I want to go to so I've been watching these kind of dark uh Scandinavian um detective shows and so uh I've always w I've now developed this desire shallow as it may be to go to the Scandinavian countries or the other countries in in the Northlands so you know Sweden Norway and then Finland which is not a Scandinavian country but I want to go there too. So that's that's my next hope for vacation. Hey I think that sounds great and you know it leads perfectly into my next question which is whether you're catching any good TV shows lately and it sounds like you are yeah you know I uh I just uh started a uh it just came it just dropped on Netflix about an FBI detective or officer who was kidnapped by a serial killer for six years and and uh so I I watched the first episode I think I'm stuck with it because it's three seasons but the th the limiting factor is it makes me a little too tense so I can only do one show a day.
Marsi Mangan:Oh yeah well that sounds good I like those kinds of shows too.
Gene Tanaka:Thanks.
Marsi Mangan:All right well I hope to talk to you again soon. Gene thanks so much for coming on board.
Gene Tanaka:Thank you. This has been a pleasure and it's been so easy to put together with you.
Marsi Mangan:As Gene mentioned in the interview he created a PDF that breaks down all of these steps and lists his favorite resources on expert testimony. It's a free download in the show notes so do look for the link. If you got something of value from today's episode with Gene Tanaka please leave us a review on Apple Podcasts or Spotify. Or you can email us at onair at NITA.org. That's onairon at NITA.org That is our new dedicated inbox just for inquiries about NITA's podcast and webcasts. However you reach out it would mean so much to all of us to hear from you. I will be back next month with Tom Innes from the Defender Association of Philadelphia. When Tom is on the docket I guarantee you're in for a nutritionally dense and entertaining chat so please do tune in. Until then, best of luck to you in your depositions, motions, trials, and other proceedings. Happy lawyering May the Record Reflect is a NITA Studio 71 production NATA, we are advocacy enhanced, mentorship reimagined. Welcome to the community