Sunday, April 6, 2008

Attorney and Expert Witnesses

From California's Fourth District Court of Appeal, a 2005 case laid out the requirement that an attorney must understand the substantive details of an expert's testimony, and the field of the expert's expertise. The attorney must also educate the expert as to the governing legal principles and elements that each party to the lawsuit must prove in order to prevail. To not do these makes the attorney liable for a malpractice lawsuit from his client.

This case involved a suit by the estate (family) of a man killed at work by a forklift. The expert was called by plaintiff's attorney to show the forklift was defective, that it was designed improperly. However, at his deposition, the expert did not mention to what standard the forklift was designed. Later, in a declaration opposing defendant's Motion for Summary Judgment, the expert wrote that the forklift was was not designed to a safety standard from the Society of Automotive Engineers, SAE. The inconsistency between the deposition and later declaration was fatal to the plaintiff's case.

Plaintiff sued his attorney for malpractice. As to the duty of the attorney to his client where an expert witness is called, the court said the following.

Forensis Group, Inc. v. Frantz, Townsend & Foldenauer (2005), 130 Cal.App.4th 14

p. 34, “In the California Expert Witness Guide (Cont.Ed.Bar 2d ed. 2005) ("CEB treatise"), section 8.28, page 290, the authors outline the duty of an attorney who hires an expert witness, that is, to "make sure that the expert, particularly the inexperienced expert, understands the governing legal principles and elements that each party to the litigation must prove in order to prevail." The authors continue:

"An expert is not a mechanical toy that can simply be wound up and turned loose. Regardless of the expert's skill, it is the lawyer's responsibility to make sure that his or her expertise is presented to the trier of fact in an admissible and persuasive way. To accomplish this task, the lawyer needs to understand the substantive details of the expert's testimony and field of expertise." (CEB treatise, supra , § 8.29, p. 291.)

The authors of the CEB treatise recommend that counsel who hires an expert ask many questions in order to ensure that the expert's testimony is presented in a form that can be understood by the trial judge and jury. (CEB treatise, supra , § 8.30, p. 292.) The attorney is also required to ensure that an expert's declaration offered in support of or in opposition to a summary judgment makes an adequate showing concerning the expert's qualifications and expertise, as would be required if the expert were testifying at trial. ( Id. at § 16.2, pp. 596-597. . .”

Mr. Sowell is an attorney with more than 20 years world-wide experience in the process industries, including refineries, chemical plants, and petrochemical plants. Mr. Sowell interacts easily with technical experts, engineers as lay witnesses, and technicians involved in legal matters. For more information, please see his website at