Informal poll on expert witnesses
Question for the group. Please respond only to me to avoid clogging everyone's email as I have just done.
The last time I tried a jury trial with expert witnesses, the jurors universally commented that they simply ignored the expert witnesses of both sides. The comment was that they figured that any lawyer could find an expert to say whatever they wanted. Unfortunately, there is probably a lot of truth to that comment. In the olden days when we took notes on stone tablets, we law students were taught that experts testify as a "friend of the court" the idea was that the Court would be in need of some expert guidance.
So, would there be any support for a rule change that would ban party sponsored experts from testifying?
Instead, a party would petition the Court to appoint an expert who would then be paid through the Court equally by all parties. The expert would then be testifying as a truly neutral witness. The experts would go through a vetting process to become certified as an expert in any particular field and much like a list of mediators, a list would be available to the Courts. The parties either agree on an expert who is then approached by the Court, or the Court selects its own expert.
This makes the expert testimony much more reliable and the qualification of the expert has been handled ahead of time. No more Daubert challenges, the Court has predetermined who is and who is not a reliable expert. The Court decides whether to allow the expert to present his testimony or simple advise the Court with regard to any questions the Court may have.
The Parties would be free to engage their own consulting experts to assist with questioning, etc., but no testimony from them.
Thanks for reading. What do you think?
[Wright, Fulford, Moorhead & Brown, P.A.]http://www.wfmblaw.com/
Timothy R. Moorhead, Esq.
Board Certified in Construction Law
505 Maitland Ave. Suite 1000 | Altamonte Springs, FL 32701
T: (407) 425-0234tel:(407)425-0234 | F: (407) 425-0260tel:(407)425-0260
Emailmailto:tmoorhead@wfmblaw.com | Websitehttp://www.wfmblaw.com | vCardhttp://www.wfmblaw.com/vcard/vcard.php?name_first=Timothy%20R.&name_last=Moorhead
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From a theoretical perspective I agree.
Justin R. Zinzow
Florida Board Certified in Construction Law
Zinzow Law, LLC
Admitted to Practice in Florida and Texas
On Sep 10, 2019, at 9:16 PM, Timothy R. Moorhead <tmoorhead@wfmblaw.commailto:tmoorhead@wfmblaw.com> wrote:
Question for the group. Please respond only to me to avoid clogging everyone’s email as I have just done.
The last time I tried a jury trial with expert witnesses, the jurors universally commented that they simply ignored the expert witnesses of both sides. The comment was that they figured that any lawyer could find an expert to say whatever they wanted. Unfortunately, there is probably a lot of truth to that comment. In the olden days when we took notes on stone tablets, we law students were taught that experts testify as a “friend of the court” the idea was that the Court would be in need of some expert guidance.
So, would there be any support for a rule change that would ban party sponsored experts from testifying?
Instead, a party would petition the Court to appoint an expert who would then be paid through the Court equally by all parties. The expert would then be testifying as a truly neutral witness. The experts would go through a vetting process to become certified as an expert in any particular field and much like a list of mediators, a list would be available to the Courts. The parties either agree on an expert who is then approached by the Court, or the Court selects its own expert.
This makes the expert testimony much more reliable and the qualification of the expert has been handled ahead of time. No more Daubert challenges, the Court has predetermined who is and who is not a reliable expert. The Court decides whether to allow the expert to present his testimony or simple advise the Court with regard to any questions the Court may have.
The Parties would be free to engage their own consulting experts to assist with questioning, etc., but no testimony from them.
Thanks for reading. What do you think?
[Wright, Fulford, Moorhead & Brown, P.A.]https://urldefense.proofpoint.com/v2/url?u=http-3A__www.wfmblaw.com_&d=DwMFAg&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=S1m8fHcxW4IfzbWxVBnddz7v0EMg5uNaaoV2JtOp7Rg&m=IJNhWN-qKbtcboeAbEPmGKUTIgeZn8oPzISh-vLpw-k&s=LyMXTgGJjMf26RQUFeeQavs67JWazTFof2I5P6kEnFA&e=
Timothy R. Moorhead, Esq.
Board Certified in Construction Law
505 Maitland Ave. Suite 1000 | Altamonte Springs, FL 32701
T: (407) 425-0234tel:(407)425-0234 | F: (407) 425-0260tel:(407)425-0260
Emailmailto:tmoorhead@wfmblaw.com | Websitehttps://urldefense.proofpoint.com/v2/url?u=http-3A__www.wfmblaw.com&d=DwMFAg&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=S1m8fHcxW4IfzbWxVBnddz7v0EMg5uNaaoV2JtOp7Rg&m=IJNhWN-qKbtcboeAbEPmGKUTIgeZn8oPzISh-vLpw-k&s=VcvLTK-TyipMkmXe9RZ_6NKqESJclsSPEqUh7Na3jSI&e= | vCardhttps://urldefense.proofpoint.com/v2/url?u=http-3A__www.wfmblaw.com_vcard_vcard.php-3Fname-5Ffirst-3DTimothy-2520R.-26name-5Flast-3DMoorhead&d=DwMFAg&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=S1m8fHcxW4IfzbWxVBnddz7v0EMg5uNaaoV2JtOp7Rg&m=IJNhWN-qKbtcboeAbEPmGKUTIgeZn8oPzISh-vLpw-k&s=7vmGvuYhgj9Ms1dnDnL_UgBi79sExjdE4M94xt1eYIM&e=
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Before I respond to the question, please excuse a brief diatribe. Even worse
(at least from my perspective) is the situation in arbitrations. I am
privileged to serve as a AAA construction and commercial arbitrator, and
experts are common. To recite what we all know, experts aren't fact
witnesses. They are testifying about their opinions, which can even be based
on hearsay which would be in itself inadmissible so long as it is the type
of thing on which experts rely. The touchstone for all of this is whether it
will assist the trier of fact. You would be disturbed at how often "expert"
testimony is so ridiculously overstated the arbitrators wind up almost
insulted that anyone thinks they might believe that nonsense. Don't
misunderstand. I've been in some cases where the experts were great teachers
about the Florida Building Codes, or construction related issues, or other
technical issues, and the experts were truly helpful. Unfortunately, I've
been in others where the testimony is so obviously biased it is simply a
waste of everyone's time.
End of monologue. To respond to your question, I like the idea. I have one
reservation. Because judge's are supposed to be neutral, letting them pick a
name unilaterally might be viewed as favoring one side or the other (however
inadvertent ). We arbitrators are always painfully aware that one of the few
grounds under either the Federal Arbitration Act or the Revised Florida
Arbitration Code for vacating an arbitral award is bias. What about a tweak.
Have the parties agree on the name, or if they can't, they agree on three
names and the trier of fact picks one. If they don't even do that, then the
court issues an order describing the expert needed and some third person
(the Clerk of the Court?) appoints the expert.
How does one go about such a rule change?
Langfred W. White, Esq.
Board Certified in Construction Law
Fellow of the Construction Lawyers
Society of America
constructionlaw 2019_AAA_logo signature CLSA Fellow small
Law Offices of Langfred W. White, PA
P. O. Box 8334
Clearwater, FL 33758-8334
Phone: (727) 422-5064
email: mailto:lan@lwwhiteattorney.com lan@lwwhiteattorney.com
This electronic message is confidential and may be subject to an
attorney-client privilege or an attorney work product privilege, or may
otherwise be exempt from discovery under applicable federal and state law.
It is intended for use only by the named addressee. If you receive this in
error or are not the intended recipient, please delete this email and notify
the sender via return e-mail or telephone at (727) 422-5064. Pursuant to
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in it, is not intended to be used and may not be used to avoid any tax
penalties that may be imposed on you.
From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy
R. Moorhead
Sent: Tuesday, September 10, 2019 9:16 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Informal poll on expert witnesses
Question for the group. Please respond only to me to avoid clogging
everyone's email as I have just done.
The last time I tried a jury trial with expert witnesses, the jurors
universally commented that they simply ignored the expert witnesses of both
sides. The comment was that they figured that any lawyer could find an
expert to say whatever they wanted. Unfortunately, there is probably a lot
of truth to that comment. In the olden days when we took notes on stone
tablets, we law students were taught that experts testify as a "friend of
the court" the idea was that the Court would be in need of some expert
guidance.
So, would there be any support for a rule change that would ban party
sponsored experts from testifying?
Instead, a party would petition the Court to appoint an expert who would
then be paid through the Court equally by all parties. The expert would
then be testifying as a truly neutral witness. The experts would go through
a vetting process to become certified as an expert in any particular field
and much like a list of mediators, a list would be available to the Courts.
The parties either agree on an expert who is then approached by the Court,
or the Court selects its own expert.
This makes the expert testimony much more reliable and the qualification of
the expert has been handled ahead of time. No more Daubert challenges, the
Court has predetermined who is and who is not a reliable expert. The Court
decides whether to allow the expert to present his testimony or simple
advise the Court with regard to any questions the Court may have.
The Parties would be free to engage their own consulting experts to assist
with questioning, etc., but no testimony from them.
Thanks for reading. What do you think?
http://www.wfmblaw.com/ Wright, Fulford, Moorhead & Brown, P.A.
Timothy R. Moorhead, Esq.
Board Certified in Construction Law
505 Maitland Ave. Suite 1000 | Altamonte Springs, FL 32701
T: tel:(407)425-0234 (407) 425-0234 | F: tel:(407)425-0260 (407)
425-0260
mailto:tmoorhead@wfmblaw.com Email | http://www.wfmblaw.com Website
|
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to provide any tax-related advice.
I also like the idea. It could be a positive and transformative change. I
concur that a lot of details would have to be ironed out, not only as to
selection of the expert but also, for example, how to determine in advance
exactly what facts the expert will be given and exactly what issues on which
the expert will be tasked to give opinions.
Is the idea to limit it to construction litigation? How would that be done?
Are we talking about statutory or procedural rules changes? Or the creation
of a protocol that parties in a constructing dispute could agree to early on
in a litigation?
Frederick C. Barnes, Esq.
Board Certified Construction Lawyer
500 N. Maitland Ave., Suite 305
Maitland, FL 32751
(407) 865-9200
http://www.fcbarneslaw.com/ www.fcbarneslaw.com
rsz_1fcb_lrg_logo
From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of
lan@lwwhiteattorney.com
Sent: Wednesday, September 11, 2019 11:02 AM
To: 'Timothy R. Moorhead'
Cc: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Informal poll on expert witnesses
Before I respond to the question, please excuse a brief diatribe. Even worse
(at least from my perspective) is the situation in arbitrations. I am
privileged to serve as a AAA construction and commercial arbitrator, and
experts are common. To recite what we all know, experts aren't fact
witnesses. They are testifying about their opinions, which can even be based
on hearsay which would be in itself inadmissible so long as it is the type
of thing on which experts rely. The touchstone for all of this is whether it
will assist the trier of fact. You would be disturbed at how often "expert"
testimony is so ridiculously overstated the arbitrators wind up almost
insulted that anyone thinks they might believe that nonsense. Don't
misunderstand. I've been in some cases where the experts were great teachers
about the Florida Building Codes, or construction related issues, or other
technical issues, and the experts were truly helpful. Unfortunately, I've
been in others where the testimony is so obviously biased it is simply a
waste of everyone's time.
End of monologue. To respond to your question, I like the idea. I have one
reservation. Because judge's are supposed to be neutral, letting them pick a
name unilaterally might be viewed as favoring one side or the other (however
inadvertent ). We arbitrators are always painfully aware that one of the few
grounds under either the Federal Arbitration Act or the Revised Florida
Arbitration Code for vacating an arbitral award is bias. What about a tweak.
Have the parties agree on the name, or if they can't, they agree on three
names and the trier of fact picks one. If they don't even do that, then the
court issues an order describing the expert needed and some third person
(the Clerk of the Court?) appoints the expert.
How does one go about such a rule change?
Langfred W. White, Esq.
Board Certified in Construction Law
Fellow of the Construction Lawyers
Society of America
constructionlaw 2019_AAA_logo signature CLSA Fellow small
Law Offices of Langfred W. White, PA
P. O. Box 8334
Clearwater, FL 33758-8334
Phone: (727) 422-5064
email: mailto:lan@lwwhiteattorney.com lan@lwwhiteattorney.com
This electronic message is confidential and may be subject to an
attorney-client privilege or an attorney work product privilege, or may
otherwise be exempt from discovery under applicable federal and state law.
It is intended for use only by the named addressee. If you receive this in
error or are not the intended recipient, please delete this email and notify
the sender via return e-mail or telephone at (727) 422-5064. Pursuant to
IRS Circular 230, please be advised this message, and any advice contained
in it, is not intended to be used and may not be used to avoid any tax
penalties that may be imposed on you.
From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy
R. Moorhead
Sent: Tuesday, September 10, 2019 9:16 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Informal poll on expert witnesses
Question for the group. Please respond only to me to avoid clogging
everyone's email as I have just done.
The last time I tried a jury trial with expert witnesses, the jurors
universally commented that they simply ignored the expert witnesses of both
sides. The comment was that they figured that any lawyer could find an
expert to say whatever they wanted. Unfortunately, there is probably a lot
of truth to that comment. In the olden days when we took notes on stone
tablets, we law students were taught that experts testify as a "friend of
the court" the idea was that the Court would be in need of some expert
guidance.
So, would there be any support for a rule change that would ban party
sponsored experts from testifying?
Instead, a party would petition the Court to appoint an expert who would
then be paid through the Court equally by all parties. The expert would
then be testifying as a truly neutral witness. The experts would go through
a vetting process to become certified as an expert in any particular field
and much like a list of mediators, a list would be available to the Courts.
The parties either agree on an expert who is then approached by the Court,
or the Court selects its own expert.
This makes the expert testimony much more reliable and the qualification of
the expert has been handled ahead of time. No more Daubert challenges, the
Court has predetermined who is and who is not a reliable expert. The Court
decides whether to allow the expert to present his testimony or simple
advise the Court with regard to any questions the Court may have.
The Parties would be free to engage their own consulting experts to assist
with questioning, etc., but no testimony from them.
Thanks for reading. What do you think?
http://www.wfmblaw.com/ Wright, Fulford, Moorhead & Brown, P.A.
Timothy R. Moorhead, Esq.
Board Certified in Construction Law
505 Maitland Ave. Suite 1000 | Altamonte Springs, FL 32701
T: tel:(407)425-0234 (407) 425-0234 | F: tel:(407)425-0260 (407)
425-0260
mailto:tmoorhead@wfmblaw.com Email | http://www.wfmblaw.com Website
|
<http://www.wfmblaw.com/vcard/vcard.php?name_first=Timothy%20R.&name_last=Mo
orhead> vCard
Martindale-Hubbell
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b_files\image004.jpg>
<http://www.lawyers.com/altamonte-springs/florida/timothy-russell-moorhead-8
23614-a/?utm_source=ratingverification&utm_medium=referral>
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g
This message and its attachments are confidential. If you are not the
addressee, any disclosure, copying, distribution, or use of the contents of
this message is prohibited. If you have received this email in error, please
destroy it and notify me immediately. No portion of this message is intended
to provide any tax-related advice.
Thinking further about the idea, if there is only one expert, and if the
expert's opinions turn out to be in line with one party's position, how
could the other party stand a chance in court? The expert's opinions would
essentially be dispositive of the case?
Frederick C. Barnes, Esq.
Board Certified Construction Lawyer
500 N. Maitland Ave., Suite 305
Maitland, FL 32751
(407) 865-9200
http://www.fcbarneslaw.com/ www.fcbarneslaw.com
rsz_1fcb_lrg_logo
From: Fred Barnes [mailto:fred@fcbarneslaw.com]
Sent: Wednesday, September 11, 2019 6:16 PM
To: 'lan@lwwhiteattorney.com'; 'Timothy R. Moorhead'
Cc: 'clc-discussion@lists.flabarrpptl.org'
Subject: RE: [CLC-Discussion] Informal poll on expert witnesses
I also like the idea. It could be a positive and transformative change. I
concur that a lot of details would have to be ironed out, not only as to
selection of the expert but also, for example, how to determine in advance
exactly what facts the expert will be given and exactly what issues on which
the expert will be tasked to give opinions.
Is the idea to limit it to construction litigation? How would that be done?
Are we talking about statutory or procedural rules changes? Or the creation
of a protocol that parties in a constructing dispute could agree to early on
in a litigation?
Frederick C. Barnes, Esq.
Board Certified Construction Lawyer
500 N. Maitland Ave., Suite 305
Maitland, FL 32751
(407) 865-9200
www.fcbarneslaw.com http://www.fcbarneslaw.com/
rsz_1fcb_lrg_logo
From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of
lan@lwwhiteattorney.com
Sent: Wednesday, September 11, 2019 11:02 AM
To: 'Timothy R. Moorhead'
Cc: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Informal poll on expert witnesses
Before I respond to the question, please excuse a brief diatribe. Even worse
(at least from my perspective) is the situation in arbitrations. I am
privileged to serve as a AAA construction and commercial arbitrator, and
experts are common. To recite what we all know, experts aren't fact
witnesses. They are testifying about their opinions, which can even be based
on hearsay which would be in itself inadmissible so long as it is the type
of thing on which experts rely. The touchstone for all of this is whether it
will assist the trier of fact. You would be disturbed at how often "expert"
testimony is so ridiculously overstated the arbitrators wind up almost
insulted that anyone thinks they might believe that nonsense. Don't
misunderstand. I've been in some cases where the experts were great teachers
about the Florida Building Codes, or construction related issues, or other
technical issues, and the experts were truly helpful. Unfortunately, I've
been in others where the testimony is so obviously biased it is simply a
waste of everyone's time.
End of monologue. To respond to your question, I like the idea. I have one
reservation. Because judge's are supposed to be neutral, letting them pick a
name unilaterally might be viewed as favoring one side or the other (however
inadvertent ). We arbitrators are always painfully aware that one of the few
grounds under either the Federal Arbitration Act or the Revised Florida
Arbitration Code for vacating an arbitral award is bias. What about a tweak.
Have the parties agree on the name, or if they can't, they agree on three
names and the trier of fact picks one. If they don't even do that, then the
court issues an order describing the expert needed and some third person
(the Clerk of the Court?) appoints the expert.
How does one go about such a rule change?
Langfred W. White, Esq.
Board Certified in Construction Law
Fellow of the Construction Lawyers
Society of America
constructionlaw 2019_AAA_logo signature CLSA Fellow small
Law Offices of Langfred W. White, PA
P. O. Box 8334
Clearwater, FL 33758-8334
Phone: (727) 422-5064
email: mailto:lan@lwwhiteattorney.com lan@lwwhiteattorney.com
This electronic message is confidential and may be subject to an
attorney-client privilege or an attorney work product privilege, or may
otherwise be exempt from discovery under applicable federal and state law.
It is intended for use only by the named addressee. If you receive this in
error or are not the intended recipient, please delete this email and notify
the sender via return e-mail or telephone at (727) 422-5064. Pursuant to
IRS Circular 230, please be advised this message, and any advice contained
in it, is not intended to be used and may not be used to avoid any tax
penalties that may be imposed on you.
From: clc-discussion-bounces@lists.flabarrpptl.org
[mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy
R. Moorhead
Sent: Tuesday, September 10, 2019 9:16 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Informal poll on expert witnesses
Question for the group. Please respond only to me to avoid clogging
everyone's email as I have just done.
The last time I tried a jury trial with expert witnesses, the jurors
universally commented that they simply ignored the expert witnesses of both
sides. The comment was that they figured that any lawyer could find an
expert to say whatever they wanted. Unfortunately, there is probably a lot
of truth to that comment. In the olden days when we took notes on stone
tablets, we law students were taught that experts testify as a "friend of
the court" the idea was that the Court would be in need of some expert
guidance.
So, would there be any support for a rule change that would ban party
sponsored experts from testifying?
Instead, a party would petition the Court to appoint an expert who would
then be paid through the Court equally by all parties. The expert would
then be testifying as a truly neutral witness. The experts would go through
a vetting process to become certified as an expert in any particular field
and much like a list of mediators, a list would be available to the Courts.
The parties either agree on an expert who is then approached by the Court,
or the Court selects its own expert.
This makes the expert testimony much more reliable and the qualification of
the expert has been handled ahead of time. No more Daubert challenges, the
Court has predetermined who is and who is not a reliable expert. The Court
decides whether to allow the expert to present his testimony or simple
advise the Court with regard to any questions the Court may have.
The Parties would be free to engage their own consulting experts to assist
with questioning, etc., but no testimony from them.
Thanks for reading. What do you think?
http://www.wfmblaw.com/ Wright, Fulford, Moorhead & Brown, P.A.
Timothy R. Moorhead, Esq.
Board Certified in Construction Law
505 Maitland Ave. Suite 1000 | Altamonte Springs, FL 32701
T: tel:(407)425-0234 (407) 425-0234 | F: tel:(407)425-0260 (407)
425-0260
mailto:tmoorhead@wfmblaw.com Email | http://www.wfmblaw.com Website
|
<http://www.wfmblaw.com/vcard/vcard.php?name_first=Timothy%20R.&name_last=Mo
orhead> vCard
Martindale-Hubbell
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b_files\image004.jpg>
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This message and its attachments are confidential. If you are not the
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destroy it and notify me immediately. No portion of this message is intended
to provide any tax-related advice.
We all know how neutral the “Neutral Evaluation” program is under 627. I think it’s a noble idea but impossible in practical terms
Sent from my iPhone
On Sep 11, 2019, at 6:31 PM, Fred Barnes <fred@fcbarneslaw.commailto:fred@fcbarneslaw.com> wrote:
Thinking further about the idea, if there is only one expert, and if the expert’s opinions turn out to be in line with one party’s position, how could the other party stand a chance in court? The expert’s opinions would essentially be dispositive of the case?
Frederick C. Barnes, Esq.
Board Certified Construction Lawyer
500 N. Maitland Ave., Suite 305
Maitland, FL 32751
(407) 865-9200
www.fcbarneslaw.comhttp://www.fcbarneslaw.com/
<image001.png>
From: Fred Barnes [mailto:fred@fcbarneslaw.com]
Sent: Wednesday, September 11, 2019 6:16 PM
To: 'lan@lwwhiteattorney.commailto:lan@lwwhiteattorney.com'; 'Timothy R. Moorhead'
Cc: 'clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org'
Subject: RE: [CLC-Discussion] Informal poll on expert witnesses
I also like the idea. It could be a positive and transformative change. I concur that a lot of details would have to be ironed out, not only as to selection of the expert but also, for example, how to determine in advance exactly what facts the expert will be given and exactly what issues on which the expert will be tasked to give opinions.
Is the idea to limit it to construction litigation? How would that be done? Are we talking about statutory or procedural rules changes? Or the creation of a protocol that parties in a constructing dispute could agree to early on in a litigation?
Frederick C. Barnes, Esq.
Board Certified Construction Lawyer
500 N. Maitland Ave., Suite 305
Maitland, FL 32751
(407) 865-9200
www.fcbarneslaw.comhttp://www.fcbarneslaw.com/
<image001.png>
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of lan@lwwhiteattorney.commailto:lan@lwwhiteattorney.com
Sent: Wednesday, September 11, 2019 11:02 AM
To: 'Timothy R. Moorhead'
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Informal poll on expert witnesses
Before I respond to the question, please excuse a brief diatribe. Even worse (at least from my perspective) is the situation in arbitrations. I am privileged to serve as a AAA construction and commercial arbitrator, and experts are common. To recite what we all know, experts aren't fact witnesses. They are testifying about their opinions, which can even be based on hearsay which would be in itself inadmissible so long as it is the type of thing on which experts rely. The touchstone for all of this is whether it will assist the trier of fact. You would be disturbed at how often "expert" testimony is so ridiculously overstated the arbitrators wind up almost insulted that anyone thinks they might believe that nonsense. Don't misunderstand. I've been in some cases where the experts were great teachers about the Florida Building Codes, or construction related issues, or other technical issues, and the experts were truly helpful. Unfortunately, I've been in others where the testimony is so obviously biased it is simply a waste of everyone's time.
End of monologue. To respond to your question, I like the idea. I have one reservation. Because judge's are supposed to be neutral, letting them pick a name unilaterally might be viewed as favoring one side or the other (however inadvertent ). We arbitrators are always painfully aware that one of the few grounds under either the Federal Arbitration Act or the Revised Florida Arbitration Code for vacating an arbitral award is bias. What about a tweak. Have the parties agree on the name, or if they can't, they agree on three names and the trier of fact picks one. If they don't even do that, then the court issues an order describing the expert needed and some third person (the Clerk of the Court?) appoints the expert.
How does one go about such a rule change?
Langfred W. White, Esq.
Board Certified in Construction Law
Fellow of the Construction Lawyers
Society of America
<image002.png> <image003.png> <image004.jpg>
Law Offices of Langfred W. White, PA
P. O. Box 8334
Clearwater, FL 33758-8334
Phone: (727) 422-5064
email: lan@lwwhiteattorney.commailto:lan@lwwhiteattorney.com
This electronic message is confidential and may be subject to an attorney-client privilege or an attorney work product privilege, or may otherwise be exempt from discovery under applicable federal and state law. It is intended for use only by the named addressee. If you receive this in error or are not the intended recipient, please delete this email and notify the sender via return e-mail or telephone at (727) 422-5064. Pursuant to IRS Circular 230, please be advised this message, and any advice contained in it, is not intended to be used and may not be used to avoid any tax penalties that may be imposed on you.
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy R. Moorhead
Sent: Tuesday, September 10, 2019 9:16 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Informal poll on expert witnesses
Question for the group. Please respond only to me to avoid clogging everyone’s email as I have just done.
The last time I tried a jury trial with expert witnesses, the jurors universally commented that they simply ignored the expert witnesses of both sides. The comment was that they figured that any lawyer could find an expert to say whatever they wanted. Unfortunately, there is probably a lot of truth to that comment. In the olden days when we took notes on stone tablets, we law students were taught that experts testify as a “friend of the court” the idea was that the Court would be in need of some expert guidance.
So, would there be any support for a rule change that would ban party sponsored experts from testifying?
Instead, a party would petition the Court to appoint an expert who would then be paid through the Court equally by all parties. The expert would then be testifying as a truly neutral witness. The experts would go through a vetting process to become certified as an expert in any particular field and much like a list of mediators, a list would be available to the Courts. The parties either agree on an expert who is then approached by the Court, or the Court selects its own expert.
This makes the expert testimony much more reliable and the qualification of the expert has been handled ahead of time. No more Daubert challenges, the Court has predetermined who is and who is not a reliable expert. The Court decides whether to allow the expert to present his testimony or simple advise the Court with regard to any questions the Court may have.
The Parties would be free to engage their own consulting experts to assist with questioning, etc., but no testimony from them.
Thanks for reading. What do you think?
[Wright, Fulford, Moorhead & Brown, P.A.]http://www.wfmblaw.com/
Timothy R. Moorhead, Esq.
Board Certified in Construction Law
505 Maitland Ave. Suite 1000 | Altamonte Springs, FL 32701
T: (407) 425-0234tel:(407)425-0234 | F: (407) 425-0260tel:(407)425-0260
Emailmailto:tmoorhead@wfmblaw.com | Websitehttp://www.wfmblaw.com | vCardhttp://www.wfmblaw.com/vcard/vcard.php?name_first=Timothy%20R.&name_last=Moorhead
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This message and its attachments are confidential. If you are not the addressee, any disclosure, copying, distribution, or use of the contents of this message is prohibited. If you have received this email in error, please destroy it and notify me immediately. No portion of this message is intended to provide any tax-related advice.
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I think it puts too much power in the hands of the judiciary and not enough in the hands of the parties.
David C. Agee, Esquire
REID & AGEE, PLLC
3633 26th Street West
Bradenton, FL 34205
Tel 941.756.8791
Fax 941.755.7311
Ask us about Real Estate and Estate Planning****
The information transmitted in this email, including any attachments, is from Reid & Agee, PLLC and is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521. This electronic information is intended only for the person(s) or entity/entities to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon, this information by persons or entities other than the intended recipient(s) is strictly prohibited. If you received this in error, please contact the sender via telephone at (941) 756-8791 or reply email and delete the email and any attachments from any computer. Thank You.
-----Original Message-----
From: "Hans Peter Haahr" Hans@hhlegal.com
Sent: Wednesday, September 11, 2019 6:37pm
To: "Fred Barnes" fred@fcbarneslaw.com
Cc: "clc-discussion@lists.flabarrpptl.org" clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Informal poll on expert witnesses
We all know how neutral the “Neutral Evaluation” program is under 627. I think it’s a noble idea but impossible in practical terms
Sent from my iPhone
On Sep 11, 2019, at 6:31 PM, Fred Barnes < fred@fcbarneslaw.com > wrote:
Thinking further about the idea, if there is only one expert, and if the expert’s opinions turn out to be in line with one party’s position, how could the other party stand a chance in court? The expert’s opinions would essentially be dispositive of the case?
Frederick C. Barnes, Esq.
Board Certified Construction Lawyer
500 N. Maitland Ave., Suite 305
Maitland, FL 32751
(407) 865-9200
www.fcbarneslaw.com
<image001.png>
From: Fred Barnes [ mailto:fred@fcbarneslaw.com ]
Sent: Wednesday, September 11, 2019 6:16 PM
To: ' lan@lwwhiteattorney.com '; 'Timothy R. Moorhead'
Cc: ' clc-discussion@lists.flabarrpptl.org '
Subject: RE: [CLC-Discussion] Informal poll on expert witnesses
I also like the idea. It could be a positive and transformative change. I concur that a lot of details would have to be ironed out, not only as to selection of the expert but also, for example, how to determine in advance exactly what facts the expert will be given and exactly what issues on which the expert will be tasked to give opinions.
Is the idea to limit it to construction litigation? How would that be done? Are we talking about statutory or procedural rules changes? Or the creation of a protocol that parties in a constructing dispute could agree to early on in a litigation?
Frederick C. Barnes, Esq.
Board Certified Construction Lawyer
500 N. Maitland Ave., Suite 305
Maitland, FL 32751
(407) 865-9200
www.fcbarneslaw.com
<image001.png>
From: clc-discussion-bounces@lists.flabarrpptl.org [ mailto:clc-discussion-bounces@lists.flabarrpptl.org ] On Behalf Of lan@lwwhiteattorney.com
Sent: Wednesday, September 11, 2019 11:02 AM
To: 'Timothy R. Moorhead'
Cc: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Informal poll on expert witnesses
Before I respond to the question, please excuse a brief diatribe. Even worse (at least from my perspective) is the situation in arbitrations. I am privileged to serve as a AAA construction and commercial arbitrator, and experts are common. To recite what we all know, experts aren't fact witnesses. They are testifying about their opinions, which can even be based on hearsay which would be in itself inadmissible so long as it is the type of thing on which experts rely. The touchstone for all of this is whether it will assist the trier of fact. You would be disturbed at how often "expert" testimony is so ridiculously overstated the arbitrators wind up almost insulted that anyone thinks they might believe that nonsense. Don't misunderstand. I've been in some cases where the experts were great teachers about the Florida Building Codes, or construction related issues, or other technical issues, and the experts were truly helpful. Unfortunately, I've been in others where the testimony is so obviously biased it is simply a waste of everyone's time.
End of monologue. To respond to your question, I like the idea. I have one reservation. Because judge's are supposed to be neutral, letting them pick a name unilaterally might be viewed as favoring one side or the other (however inadvertent ). We arbitrators are always painfully aware that one of the few grounds under either the Federal Arbitration Act or the Revised Florida Arbitration Code for vacating an arbitral award is bias. What about a tweak. Have the parties agree on the name, or if they can't, they agree on three names and the trier of fact picks one. If they don't even do that, then the court issues an order describing the expert needed and some third person (the Clerk of the Court?) appoints the expert.
How does one go about such a rule change?
Langfred W. White, Esq.
Board Certified in Construction Law
Fellow of the Construction Lawyers
Society of America
<image002.png> <image003.png> <image004.jpg>
Law Offices of Langfred W. White, PA
P. O. Box 8334
Clearwater, FL 33758-8334
Phone: (727) 422-5064
email: lan@lwwhiteattorney.com
This electronic message is confidential and may be subject to an attorney-client privilege or an attorney work product privilege, or may otherwise be exempt from discovery under applicable federal and state law. It is intended for use only by the named addressee. If you receive this in error or are not the intended recipient, please delete this email and notify the sender via return e-mail or telephone at (727) 422-5064. Pursuant to IRS Circular 230, please be advised this message, and any advice contained in it, is not intended to be used and may not be used to avoid any tax penalties that may be imposed on you.
From: clc-discussion-bounces@lists.flabarrpptl.org [ mailto:clc-discussion-bounces@lists.flabarrpptl.org ] On Behalf Of Timothy R. Moorhead
Sent: Tuesday, September 10, 2019 9:16 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Informal poll on expert witnesses
Question for the group. Please respond only to me to avoid clogging everyone’s email as I have just done.
The last time I tried a jury trial with expert witnesses, the jurors universally commented that they simply ignored the expert witnesses of both sides. The comment was that they figured that any lawyer could find an expert to say whatever they wanted. Unfortunately, there is probably a lot of truth to that comment. In the olden days when we took notes on stone tablets, we law students were taught that experts testify as a “friend of the court” the idea was that the Court would be in need of some expert guidance.
So, would there be any support for a rule change that would ban party sponsored experts from testifying?
Instead, a party would petition the Court to appoint an expert who would then be paid through the Court equally by all parties. The expert would then be testifying as a truly neutral witness. The experts would go through a vetting process to become certified as an expert in any particular field and much like a list of mediators, a list would be available to the Courts. The parties either agree on an expert who is then approached by the Court, or the Court selects its own expert.
This makes the expert testimony much more reliable and the qualification of the expert has been handled ahead of time. No more Daubert challenges, the Court has predetermined who is and who is not a reliable expert. The Court decides whether to allow the expert to present his testimony or simple advise the Court with regard to any questions the Court may have.
The Parties would be free to engage their own consulting experts to assist with questioning, etc., but no testimony from them.
Thanks for reading. What do you think?
Timothy R. Moorhead, Esq.
Board Certified in Construction Law
505 Maitland Ave. Suite 1000 | Altamonte Springs, FL 32701
T: (407) 425-0234 | F: (407) 425-0260
This message and its attachments are confidential. If you are not the addressee, any disclosure, copying, distribution, or use of the contents of this message is prohibited. If you have received this email in error, please destroy it and notify me immediately. No portion of this message is intended to provide any tax-related advice.
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CLC-Discussion@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/clc-discussion
that brits use one court appointed expert and no jury - generally.
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On Wed, Sep 11, 2019 at 7:00 PM -0400, "David C. Agee, Esq." <dagee@reidagee.commailto:dagee@reidagee.com> wrote:
I think it puts too much power in the hands of the judiciary and not enough in the hands of the parties.
David C. Agee, Esquire
REID & AGEE, PLLC
3633 26th Street West
Bradenton, FL 34205
Tel 941.756.8791
Fax 941.755.7311
Ask us about Real Estate and Estate Planning****
The information transmitted in this email, including any attachments, is from Reid & Agee, PLLC and is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521. This electronic information is intended only for the person(s) or entity/entities to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon, this information by persons or entities other than the intended recipient(s) is strictly prohibited. If you received this in error, please contact the sender via telephone at (941) 756-8791 or reply email and delete the email and any attachments from any computer. Thank You.
-----Original Message-----
From: "Hans Peter Haahr" Hans@hhlegal.com
Sent: Wednesday, September 11, 2019 6:37pm
To: "Fred Barnes" fred@fcbarneslaw.com
Cc: "clc-discussion@lists.flabarrpptl.org" clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Informal poll on expert witnesses
We all know how neutral the “Neutral Evaluation” program is under 627. I think it’s a noble idea but impossible in practical terms
Sent from my iPhone
On Sep 11, 2019, at 6:31 PM, Fred Barnes <fred@fcbarneslaw.commailto:fred@fcbarneslaw.com> wrote:
Thinking further about the idea, if there is only one expert, and if the expert’s opinions turn out to be in line with one party’s position, how could the other party stand a chance in court? The expert’s opinions would essentially be dispositive of the case?
Frederick C. Barnes, Esq.
Board Certified Construction Lawyer
500 N. Maitland Ave., Suite 305
Maitland, FL 32751
(407) 865-9200
www.fcbarneslaw.comhttp://www.fcbarneslaw.com/
<image001.png>
From: Fred Barnes [mailto:fred@fcbarneslaw.com]
Sent: Wednesday, September 11, 2019 6:16 PM
To: 'lan@lwwhiteattorney.commailto:lan@lwwhiteattorney.com'; 'Timothy R. Moorhead'
Cc: 'clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org'
Subject: RE: [CLC-Discussion] Informal poll on expert witnesses
I also like the idea. It could be a positive and transformative change. I concur that a lot of details would have to be ironed out, not only as to selection of the expert but also, for example, how to determine in advance exactly what facts the expert will be given and exactly what issues on which the expert will be tasked to give opinions.
Is the idea to limit it to construction litigation? How would that be done? Are we talking about statutory or procedural rules changes? Or the creation of a protocol that parties in a constructing dispute could agree to early on in a litigation?
Frederick C. Barnes, Esq.
Board Certified Construction Lawyer
500 N. Maitland Ave., Suite 305
Maitland, FL 32751
(407) 865-9200
www.fcbarneslaw.comhttp://www.fcbarneslaw.com/
<image001.png>
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of lan@lwwhiteattorney.commailto:lan@lwwhiteattorney.com
Sent: Wednesday, September 11, 2019 11:02 AM
To: 'Timothy R. Moorhead'
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Informal poll on expert witnesses
Before I respond to the question, please excuse a brief diatribe. Even worse (at least from my perspective) is the situation in arbitrations. I am privileged to serve as a AAA construction and commercial arbitrator, and experts are common. To recite what we all know, experts aren't fact witnesses. They are testifying about their opinions, which can even be based on hearsay which would be in itself inadmissible so long as it is the type of thing on which experts rely. The touchstone for all of this is whether it will assist the trier of fact. You would be disturbed at how often "expert" testimony is so ridiculously overstated the arbitrators wind up almost insulted that anyone thinks they might believe that nonsense. Don't misunderstand. I've been in some cases where the experts were great teachers about the Florida Building Codes, or construction related issues, or other technical issues, and the experts were truly helpful. Unfortunately, I've been in others where the testimony is so obviously biased it is simply a waste of everyone's time.
End of monologue. To respond to your question, I like the idea. I have one reservation. Because judge's are supposed to be neutral, letting them pick a name unilaterally might be viewed as favoring one side or the other (however inadvertent ). We arbitrators are always painfully aware that one of the few grounds under either the Federal Arbitration Act or the Revised Florida Arbitration Code for vacating an arbitral award is bias. What about a tweak. Have the parties agree on the name, or if they can't, they agree on three names and the trier of fact picks one. If they don't even do that, then the court issues an order describing the expert needed and some third person (the Clerk of the Court?) appoints the expert.
How does one go about such a rule change?
Langfred W. White, Esq.
Board Certified in Construction Law
Fellow of the Construction Lawyers
Society of America
<image002.png> <image003.png> <image004.jpg>
Law Offices of Langfred W. White, PA
P. O. Box 8334
Clearwater, FL 33758-8334
Phone: (727) 422-5064
email: lan@lwwhiteattorney.commailto:lan@lwwhiteattorney.com
This electronic message is confidential and may be subject to an attorney-client privilege or an attorney work product privilege, or may otherwise be exempt from discovery under applicable federal and state law. It is intended for use only by the named addressee. If you receive this in error or are not the intended recipient, please delete this email and notify the sender via return e-mail or telephone at (727) 422-5064. Pursuant to IRS Circular 230, please be advised this message, and any advice contained in it, is not intended to be used and may not be used to avoid any tax penalties that may be imposed on you.
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy R. Moorhead
Sent: Tuesday, September 10, 2019 9:16 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Informal poll on expert witnesses
Question for the group. Please respond only to me to avoid clogging everyone’s email as I have just done.
The last time I tried a jury trial with expert witnesses, the jurors universally commented that they simply ignored the expert witnesses of both sides. The comment was that they figured that any lawyer could find an expert to say whatever they wanted. Unfortunately, there is probably a lot of truth to that comment. In the olden days when we took notes on stone tablets, we law students were taught that experts testify as a “friend of the court” the idea was that the Court would be in need of some expert guidance.
So, would there be any support for a rule change that would ban party sponsored experts from testifying?
Instead, a party would petition the Court to appoint an expert who would then be paid through the Court equally by all parties. The expert would then be testifying as a truly neutral witness. The experts would go through a vetting process to become certified as an expert in any particular field and much like a list of mediators, a list would be available to the Courts. The parties either agree on an expert who is then approached by the Court, or the Court selects its own expert.
This makes the expert testimony much more reliable and the qualification of the expert has been handled ahead of time. No more Daubert challenges, the Court has predetermined who is and who is not a reliable expert. The Court decides whether to allow the expert to present his testimony or simple advise the Court with regard to any questions the Court may have.
The Parties would be free to engage their own consulting experts to assist with questioning, etc., but no testimony from them.
Thanks for reading. What do you think?
[Wright, Fulford, Moorhead & Brown, P.A.]http://www.wfmblaw.com/
Timothy R. Moorhead, Esq.
Board Certified in Construction Law
505 Maitland Ave. Suite 1000 | Altamonte Springs, FL 32701
T: (407) 425-0234tel:(407)425-0234 | F: (407) 425-0260tel:(407)425-0260
Emailmailto:tmoorhead@wfmblaw.com | Websitehttp://www.wfmblaw.com | vCardhttp://www.wfmblaw.com/vcard/vcard.php?name_first=Timothy%20R.&name_last=Moorhead
[http://www.martindale.com/marketyourfirm/mhratings/img/av2017-rating-full.png]http://www.lawyers.com/altamonte-springs/florida/timothy-russell-moorhead-823614-a/?utm_source=ratingverification&utm_medium=referral
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Fred,
That is sort of the point.
Experts are the only people whose opinions (rather than factual observations) are allowed. See objections relating to hearsay and speculation. However, the idea of parties sponsoring their "expert's" testimony has led to the fact finder distrusting or ignoring those opinions. They are no longer testifying as "friends of the Court". They are testifying as "friend of the guy paying me".
So, what I am advocating is finding a process to get back to making expert testimony more trustworthy by the Courts and juries. To do so I think we need a system in place to have the experts prove up their qualifications and be accepted by the Courts and Counsel. Once "State Certified" if you will, the Court knows they can trust the guidance they give to the Court. The parties can suggest a panel from which the Court chooses and an expert would only be engaged upon the Court's motion or upon the motion of a party and a showing of cause for their engagement.
We pay them from the Court rather than hiring them through counsel. The parties still bear the cost, but less directly.
[Wright, Fulford, Moorhead & Brown, P.A.]http://www.wfmblaw.com/
Timothy R. Moorhead, Esq.
Board Certified in Construction Law
505 Maitland Ave. Suite 1000 | Altamonte Springs, FL 32701
T: (407) 425-0234tel:(407)425-0234 | F: (407) 425-0260tel:(407)425-0260
Emailmailto:tmoorhead@wfmblaw.com | Websitehttp://www.wfmblaw.com | vCardhttp://www.wfmblaw.com/vcard/vcard.php?name_first=Timothy%20R.&name_last=Moorhead
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From: Fred Barnes fred@fcbarneslaw.com
Sent: Wednesday, September 11, 2019 6:27 PM
To: lan@lwwhiteattorney.com; Timothy R. Moorhead tmoorhead@wfmblaw.com
Cc: clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Informal poll on expert witnesses
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
Thinking further about the idea, if there is only one expert, and if the expert's opinions turn out to be in line with one party's position, how could the other party stand a chance in court? The expert's opinions would essentially be dispositive of the case?
Frederick C. Barnes, Esq.
Board Certified Construction Lawyer
500 N. Maitland Ave., Suite 305
Maitland, FL 32751
(407) 865-9200
www.fcbarneslaw.comhttp://www.fcbarneslaw.com/
[rsz_1fcb_lrg_logo]
From: Fred Barnes [mailto:fred@fcbarneslaw.com]
Sent: Wednesday, September 11, 2019 6:16 PM
To: 'lan@lwwhiteattorney.com'; 'Timothy R. Moorhead'
Cc: 'clc-discussion@lists.flabarrpptl.org'
Subject: RE: [CLC-Discussion] Informal poll on expert witnesses
I also like the idea. It could be a positive and transformative change. I concur that a lot of details would have to be ironed out, not only as to selection of the expert but also, for example, how to determine in advance exactly what facts the expert will be given and exactly what issues on which the expert will be tasked to give opinions.
Is the idea to limit it to construction litigation? How would that be done? Are we talking about statutory or procedural rules changes? Or the creation of a protocol that parties in a constructing dispute could agree to early on in a litigation?
Frederick C. Barnes, Esq.
Board Certified Construction Lawyer
500 N. Maitland Ave., Suite 305
Maitland, FL 32751
(407) 865-9200
www.fcbarneslaw.comhttp://www.fcbarneslaw.com/
[rsz_1fcb_lrg_logo]
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of lan@lwwhiteattorney.commailto:lan@lwwhiteattorney.com
Sent: Wednesday, September 11, 2019 11:02 AM
To: 'Timothy R. Moorhead'
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Informal poll on expert witnesses
Before I respond to the question, please excuse a brief diatribe. Even worse (at least from my perspective) is the situation in arbitrations. I am privileged to serve as a AAA construction and commercial arbitrator, and experts are common. To recite what we all know, experts aren't fact witnesses. They are testifying about their opinions, which can even be based on hearsay which would be in itself inadmissible so long as it is the type of thing on which experts rely. The touchstone for all of this is whether it will assist the trier of fact. You would be disturbed at how often "expert" testimony is so ridiculously overstated the arbitrators wind up almost insulted that anyone thinks they might believe that nonsense. Don't misunderstand. I've been in some cases where the experts were great teachers about the Florida Building Codes, or construction related issues, or other technical issues, and the experts were truly helpful. Unfortunately, I've been in others where the testimony is so obviously biased it is simply a waste of everyone's time.
End of monologue. To respond to your question, I like the idea. I have one reservation. Because judge's are supposed to be neutral, letting them pick a name unilaterally might be viewed as favoring one side or the other (however inadvertent ). We arbitrators are always painfully aware that one of the few grounds under either the Federal Arbitration Act or the Revised Florida Arbitration Code for vacating an arbitral award is bias. What about a tweak. Have the parties agree on the name, or if they can't, they agree on three names and the trier of fact picks one. If they don't even do that, then the court issues an order describing the expert needed and some third person (the Clerk of the Court?) appoints the expert.
How does one go about such a rule change?
Langfred W. White, Esq.
Board Certified in Construction Law
Fellow of the Construction Lawyers
Society of America
[constructionlaw] [2019_AAA_logo signature] [CLSA Fellow small]
Law Offices of Langfred W. White, PA
P. O. Box 8334
Clearwater, FL 33758-8334
Phone: (727) 422-5064
email: lan@lwwhiteattorney.commailto:lan@lwwhiteattorney.com
This electronic message is confidential and may be subject to an attorney-client privilege or an attorney work product privilege, or may otherwise be exempt from discovery under applicable federal and state law. It is intended for use only by the named addressee. If you receive this in error or are not the intended recipient, please delete this email and notify the sender via return e-mail or telephone at (727) 422-5064. Pursuant to IRS Circular 230, please be advised this message, and any advice contained in it, is not intended to be used and may not be used to avoid any tax penalties that may be imposed on you.
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy R. Moorhead
Sent: Tuesday, September 10, 2019 9:16 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Informal poll on expert witnesses
Question for the group. Please respond only to me to avoid clogging everyone's email as I have just done.
The last time I tried a jury trial with expert witnesses, the jurors universally commented that they simply ignored the expert witnesses of both sides. The comment was that they figured that any lawyer could find an expert to say whatever they wanted. Unfortunately, there is probably a lot of truth to that comment. In the olden days when we took notes on stone tablets, we law students were taught that experts testify as a "friend of the court" the idea was that the Court would be in need of some expert guidance.
So, would there be any support for a rule change that would ban party sponsored experts from testifying?
Instead, a party would petition the Court to appoint an expert who would then be paid through the Court equally by all parties. The expert would then be testifying as a truly neutral witness. The experts would go through a vetting process to become certified as an expert in any particular field and much like a list of mediators, a list would be available to the Courts. The parties either agree on an expert who is then approached by the Court, or the Court selects its own expert.
This makes the expert testimony much more reliable and the qualification of the expert has been handled ahead of time. No more Daubert challenges, the Court has predetermined who is and who is not a reliable expert. The Court decides whether to allow the expert to present his testimony or simple advise the Court with regard to any questions the Court may have.
The Parties would be free to engage their own consulting experts to assist with questioning, etc., but no testimony from them.
Thanks for reading. What do you think?
[Wright, Fulford, Moorhead & Brown, P.A.]http://www.wfmblaw.com/
Timothy R. Moorhead, Esq.
Board Certified in Construction Law
505 Maitland Ave. Suite 1000 | Altamonte Springs, FL 32701
T: (407) 425-0234tel:(407)425-0234 | F: (407) 425-0260tel:(407)425-0260
Emailmailto:tmoorhead@wfmblaw.com | Websitehttp://www.wfmblaw.com | vCardhttp://www.wfmblaw.com/vcard/vcard.php?name_first=Timothy%20R.&name_last=Moorhead
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This message and its attachments are confidential. If you are not the addressee, any disclosure, copying, distribution, or use of the contents of this message is prohibited. If you have received this email in error, please destroy it and notify me immediately. No portion of this message is intended to provide any tax-related advice.
I can understand the idea that juries may ignore expert opinions based on the fact that parties pay the experts. That's a pretty high level of cynicism, of course, but understandable. Did you ask the jurors what they would have thought of the case if only one side has an expert, though?
If the court appoints the expert, the expert essentially becomes a testifying special master. That expert's opinion will carry such great weight that it will be nearly impossible for the party whose position ends up discarded by the court-appointed expert to overcome.
And, I know you say that is sort of the point. But, what if the court-appointed expert is dead wrong about their opinion or makes a mistake and fails to consider certain information that is critical to proper understanding. How, then, does the other side get over the threshold of the imprimatur of "court-appointed" and "neutral" if you cannot offer your own expert to point out the deep flaws in methodology?
What happens if the factfinder decides the expert is completely untrustworthy for that particular case? Assume that through brilliant cross-examination you have successfully undermined the testimony of the court's expert. Where does that leave the case? You still have issues that require expert testimony to decide, yet you now have a factfinder left to its own devices in figuring out what the right answer is. Do you want a jury of twelve people who are not experts just throwing darts to figure out the right answer?
How do you define the scope of the court-appointed expert's area of expertise? If you have multiple issues for different expertise in a case, do you have three or four or five court appointed experts - one for E&O, one for delays, one for what the contractor should have done in the situation, one for what the owner should have done in the situation, etc.?
I think your idea is a good one theoretically speaking. In practice, however, I do not think it would work and would strongly oppose it.
Anthony D. Lehman
Partner
[HudsonParrottWalker, LLC]https://www.hpwlegal.com/
Licensed in Georgia, Florida, and Alabama
Florida Bar Board Certified in Construction Law
HudsonParrottWalker, LLC
3575 Piedmont Road
Suite 850
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From: clc-discussion-bounces@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.org On Behalf Of Timothy R. Moorhead
Sent: Wednesday, September 11, 2019 11:00 PM
To: Fred Barnes fred@fcbarneslaw.com; lan@lwwhiteattorney.com
Cc: clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Informal poll on expert witnesses
Fred,
That is sort of the point.
Experts are the only people whose opinions (rather than factual observations) are allowed. See objections relating to hearsay and speculation. However, the idea of parties sponsoring their "expert's" testimony has led to the fact finder distrusting or ignoring those opinions. They are no longer testifying as "friends of the Court". They are testifying as "friend of the guy paying me".
So, what I am advocating is finding a process to get back to making expert testimony more trustworthy by the Courts and juries. To do so I think we need a system in place to have the experts prove up their qualifications and be accepted by the Courts and Counsel. Once "State Certified" if you will, the Court knows they can trust the guidance they give to the Court. The parties can suggest a panel from which the Court chooses and an expert would only be engaged upon the Court's motion or upon the motion of a party and a showing of cause for their engagement.
We pay them from the Court rather than hiring them through counsel. The parties still bear the cost, but less directly.
[Wright, Fulford, Moorhead & Brown, P.A.]http://www.wfmblaw.com/
Timothy R. Moorhead, Esq.
Board Certified in Construction Law
505 Maitland Ave. Suite 1000 | Altamonte Springs, FL 32701
T: (407) 425-0234tel:(407)425-0234 | F: (407) 425-0260tel:(407)425-0260
Emailmailto:tmoorhead@wfmblaw.com | Websitehttp://www.wfmblaw.com | vCardhttp://www.wfmblaw.com/vcard/vcard.php?name_first=Timothy%20R.&name_last=Moorhead
[http://www.martindale.com/marketyourfirm/mhratings/img/av2017-rating-full.png]http://www.lawyers.com/altamonte-springs/florida/timothy-russell-moorhead-823614-a/?utm_source=ratingverification&utm_medium=referral
This message and its attachments are confidential. If you are not the addressee, any disclosure, copying, distribution, or use of the contents of this message is prohibited. If you have received this email in error, please destroy it and notify me immediately. No portion of this message is intended to provide any tax-related advice.
From: Fred Barnes <fred@fcbarneslaw.commailto:fred@fcbarneslaw.com>
Sent: Wednesday, September 11, 2019 6:27 PM
To: lan@lwwhiteattorney.commailto:lan@lwwhiteattorney.com; Timothy R. Moorhead <tmoorhead@wfmblaw.commailto:tmoorhead@wfmblaw.com>
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: [CLC-Discussion] Informal poll on expert witnesses
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
Thinking further about the idea, if there is only one expert, and if the expert's opinions turn out to be in line with one party's position, how could the other party stand a chance in court? The expert's opinions would essentially be dispositive of the case?
Frederick C. Barnes, Esq.
Board Certified Construction Lawyer
500 N. Maitland Ave., Suite 305
Maitland, FL 32751
(407) 865-9200
www.fcbarneslaw.comhttp://www.fcbarneslaw.com/
[rsz_1fcb_lrg_logo]
From: Fred Barnes [mailto:fred@fcbarneslaw.com]
Sent: Wednesday, September 11, 2019 6:16 PM
To: 'lan@lwwhiteattorney.com'; 'Timothy R. Moorhead'
Cc: 'clc-discussion@lists.flabarrpptl.org'
Subject: RE: [CLC-Discussion] Informal poll on expert witnesses
I also like the idea. It could be a positive and transformative change. I concur that a lot of details would have to be ironed out, not only as to selection of the expert but also, for example, how to determine in advance exactly what facts the expert will be given and exactly what issues on which the expert will be tasked to give opinions.
Is the idea to limit it to construction litigation? How would that be done? Are we talking about statutory or procedural rules changes? Or the creation of a protocol that parties in a constructing dispute could agree to early on in a litigation?
Frederick C. Barnes, Esq.
Board Certified Construction Lawyer
500 N. Maitland Ave., Suite 305
Maitland, FL 32751
(407) 865-9200
www.fcbarneslaw.comhttp://www.fcbarneslaw.com/
[rsz_1fcb_lrg_logo]
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of lan@lwwhiteattorney.commailto:lan@lwwhiteattorney.com
Sent: Wednesday, September 11, 2019 11:02 AM
To: 'Timothy R. Moorhead'
Cc: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Informal poll on expert witnesses
Before I respond to the question, please excuse a brief diatribe. Even worse (at least from my perspective) is the situation in arbitrations. I am privileged to serve as a AAA construction and commercial arbitrator, and experts are common. To recite what we all know, experts aren't fact witnesses. They are testifying about their opinions, which can even be based on hearsay which would be in itself inadmissible so long as it is the type of thing on which experts rely. The touchstone for all of this is whether it will assist the trier of fact. You would be disturbed at how often "expert" testimony is so ridiculously overstated the arbitrators wind up almost insulted that anyone thinks they might believe that nonsense. Don't misunderstand. I've been in some cases where the experts were great teachers about the Florida Building Codes, or construction related issues, or other technical issues, and the experts were truly helpful. Unfortunately, I've been in others where the testimony is so obviously biased it is simply a waste of everyone's time.
End of monologue. To respond to your question, I like the idea. I have one reservation. Because judge's are supposed to be neutral, letting them pick a name unilaterally might be viewed as favoring one side or the other (however inadvertent ). We arbitrators are always painfully aware that one of the few grounds under either the Federal Arbitration Act or the Revised Florida Arbitration Code for vacating an arbitral award is bias. What about a tweak. Have the parties agree on the name, or if they can't, they agree on three names and the trier of fact picks one. If they don't even do that, then the court issues an order describing the expert needed and some third person (the Clerk of the Court?) appoints the expert.
How does one go about such a rule change?
Langfred W. White, Esq.
Board Certified in Construction Law
Fellow of the Construction Lawyers
Society of America
[constructionlaw] [2019_AAA_logo signature] [CLSA Fellow small]
Law Offices of Langfred W. White, PA
P. O. Box 8334
Clearwater, FL 33758-8334
Phone: (727) 422-5064
email: lan@lwwhiteattorney.commailto:lan@lwwhiteattorney.com
This electronic message is confidential and may be subject to an attorney-client privilege or an attorney work product privilege, or may otherwise be exempt from discovery under applicable federal and state law. It is intended for use only by the named addressee. If you receive this in error or are not the intended recipient, please delete this email and notify the sender via return e-mail or telephone at (727) 422-5064. Pursuant to IRS Circular 230, please be advised this message, and any advice contained in it, is not intended to be used and may not be used to avoid any tax penalties that may be imposed on you.
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Timothy R. Moorhead
Sent: Tuesday, September 10, 2019 9:16 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Informal poll on expert witnesses
Question for the group. Please respond only to me to avoid clogging everyone's email as I have just done.
The last time I tried a jury trial with expert witnesses, the jurors universally commented that they simply ignored the expert witnesses of both sides. The comment was that they figured that any lawyer could find an expert to say whatever they wanted. Unfortunately, there is probably a lot of truth to that comment. In the olden days when we took notes on stone tablets, we law students were taught that experts testify as a "friend of the court" the idea was that the Court would be in need of some expert guidance.
So, would there be any support for a rule change that would ban party sponsored experts from testifying?
Instead, a party would petition the Court to appoint an expert who would then be paid through the Court equally by all parties. The expert would then be testifying as a truly neutral witness. The experts would go through a vetting process to become certified as an expert in any particular field and much like a list of mediators, a list would be available to the Courts. The parties either agree on an expert who is then approached by the Court, or the Court selects its own expert.
This makes the expert testimony much more reliable and the qualification of the expert has been handled ahead of time. No more Daubert challenges, the Court has predetermined who is and who is not a reliable expert. The Court decides whether to allow the expert to present his testimony or simple advise the Court with regard to any questions the Court may have.
The Parties would be free to engage their own consulting experts to assist with questioning, etc., but no testimony from them.
Thanks for reading. What do you think?
[Wright, Fulford, Moorhead & Brown, P.A.]http://www.wfmblaw.com/
Timothy R. Moorhead, Esq.
Board Certified in Construction Law
505 Maitland Ave. Suite 1000 | Altamonte Springs, FL 32701
T: (407) 425-0234tel:(407)425-0234 | F: (407) 425-0260tel:(407)425-0260
Emailmailto:tmoorhead@wfmblaw.com | Websitehttp://www.wfmblaw.com | vCardhttp://www.wfmblaw.com/vcard/vcard.php?name_first=Timothy%20R.&name_last=Moorhead
[http://www.martindale.com/marketyourfirm/mhratings/img/av2017-rating-full.png]http://www.lawyers.com/altamonte-springs/florida/timothy-russell-moorhead-823614-a/?utm_source=ratingverification&utm_medium=referral
This message and its attachments are confidential. If you are not the addressee, any disclosure, copying, distribution, or use of the contents of this message is prohibited. If you have received this email in error, please destroy it and notify me immediately. No portion of this message is intended to provide any tax-related advice.
