Title: Expert: A Guide to Forensic Engineering and Service as an Expert Witness
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Title: Expert: A Guide to Forensic Engineering and Service as an Expert Witness
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Language: English
Publisher: Association of Soil and Foundation Engineers
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Expert: A Guide to Forensic Engineering and Service as an Expert Witness
General Note: Box 6, Folder 6 ( Vail Conference 1986 - 1986 ), Item 74
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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A GUIDE TO FORENSIC ENGINEERING


AND SERVICE AS AN EXPERT WITNESS





















ASSOCIATION OF L A ND FOUNDATION ENGINEERS
ASSOCIATION OF SOIL AND FOUNDATION ENGINEERS









CONTENTS


FOREWORD .................... v

INTRODUCTION .............. vii

I. PROCEDURES FOR
FORMAL DISPUTE
RESOLUTION .................... 1
Civil Litigation ....................... 1
Private Litigation ..................... 1
A arbitration .......................... 1
Mediation ........................... 1
Mediation/Arbitration .................. 1
Hearings ............................ 2
O their ......... ..... .. ......... 2

II. CIVIL LITIGATION:
AN OVERVIEW ................. 3
The Event .......................... 3
Pleadings Stage ...................... 3
Pretrial Stage ........................ 4
Trial Stage .......................... 5
Post-Trial Stage ....................... 7

III. FORENSIC ENGINEERING
SERVICES ........................ 9
Research Plan Development ............ 9
Site Review/Photography ............... 9
Interviewing Witnesses ................10
Identifying Standards of Care ........... 10
Identifying Applicable Codes,
Standards, Regulations, Etc.......... 10
Identifying Aspects of the
Engagement ................... 10
Identifying Management
Methodologies ................... 11
Research of Others' Opinions ........... 11
Individual Background Checks .......... 12
Case Research ..................... 13
Claim Evaluation ................... 13
Review of Others'
Research/Liaison .................. 13
Retention of Additional
Experts .........................13
Collaboration with the
Opposing Expert ................. 14
Subsurface Exploration ................ 14
Testing .............................14
Report Preparation .................... 14
Participation in Pretrial
Hearing........................ 15
Identification of Materials
Needed ........................ 15
Participating in Interrogatories ........... 15
Preparing for and Participating
in Depositions ................... 16
Development of Graphics,
Models, Demonstrations ............ 16
Preparation of Testimony ............... 17
Trial Preparation ................... 19


On-Call Service ................... 19
Trial Participation ................... 19
Storage............................. 19
General Consultation .................. 20
Adm instration ................... .. 20

IV. ISSUES TO RESOLVE
BEFORE TRIAL ................. 21

V. ATTITUDE AND
DEMEANOR IN COURT
AND AT DEPOSITION ........... 23
D positions ........................ 24

VI. CROSS-EXAMINATION .......... 27

VII. THE ENGAGEMENT ..............33
The Client ..........................33
The Initial Call ...................... 33
Research .......................... 34
Meeting ................... .........35
Preliminary Report ................... 35
Engagement for Additional Services ...... 35

VIII. POST-ENGAGEMENT
FOLLOW -UP .....................37
Exhibit 1: Format for Expert's
Final Report ................... 38
Exhibit 2: Attorney's
Deposition Checklist ........... 40
Exhibit 3: Sample Legal
Evidence Control Form.......... 42
Exhibit 4: Forensic Services
Checklist ................... .. 43
Exhibit 5: Sample Letter to
Attorney in Response to
Telephone Inquiry .............. 45
Exhibit 6: Professional
Curriculum Vitae ............... 46
Exhibit 7: Short Form of
Agreement for Preliminary
Services ..................... 47


Copyright 1985 by the Association of Soil and Foundation
Engineers, Inc. This document may not be reproduced in
whole or in part by any means whatsoever without the ex-
press written permission of the Association of Soil and
Foundation Engineers, Inc., nor may it be quoted or excerp-
ted to any extent, except for purposes of review or scholarly
research, without the Association's express permission.









FOREWORD


Most geotechnical engineers will be requested
at some time during their careers to serve as
expert witnesses. This publication has been
prepared principally for those engineers with little
or no prior experience as experts. It provides
generalized instruction as well as overview informa-
tion which individuals can use to determine whether
or not they wish to become involved as experts.
A number of factors should be considered
before you accept a given case, and these are
delineated. However, the overriding decision of
whether or not to ever serve as an expert is one on-
ly you can make. ASFE believes as many qualified
geotechnical engineers as possible should serve as
experts. This will make available a large pool of un-
biased talent, helping to minimize the need for any
conscientious attorney to rely on those who are will-
ing to say whatever it is they believe the client wants
to hear, or those who will for purposes of self-
aggrandizement find cause for suit where none ac-
tually exists.
Some highly qualified geotechnical engineers
eschew expert witness assignments because they
find the work distasteful. While they are called upon
to report only the truth-their honest opinions and
conclusions-they object to the manner which their
reports and testimony sometimes must be struc-
tured. The structure employed is affected by the ad-
vocacy nature of conventional dispute resolution
mechanisms. In essence, our justice systems require
each disputant to put his "best foot forward," with
a trier of fact, e.g., judge, jury or arbitrator, render-
ing a decision on the merits of the various
arguments.
An attorney is not engaged to effect justice. In-
stead, he is retained to do the best possible job he
can for his client (advocacy) as part of a process
whose end result should be justice. By contrast, the
expert serves the trier of fact by explaining matters
which a layperson is not equipped to understand.
But an expert seldom has a totally free hand, and
sometimes must make reasonable compromises
about style, not substance. If the most competent ex-
perts are unwilling to make any such compromises
whatsoever, only those of lesser competence will be
available to serve.
In reading what follows, bear in mind that what
may be applicable in general may not be applicable
in specific instances. You are encouraged to peruse
this publication with a critical eye, recognizing that
it offers suggestions, not ASFE policy. Your com-
ments will be warmly welcomed.
It is appropriate to also mention reliance on
male-oriented pronouns. ASFE recognizes full well


that many of the individuals discussed-clients, at-
torneys, judges, and so on-will in practice be
female. Male-oriented pronouns have been
employed for purposes of brevity, and in confor-
mance with traditional usage of "he" to refer to a per-
son without regard to gender. ASFE hopes to obtain
the understanding of any who may regard this prac-
tice as objectionable or, at the least, concurrence that
the value of ASFE's suggestions transcends whatever
detriment the practice may impose.


Donald V. Roberts
President 1985-86
November 1985








INTRODUCTION


An expert witness serves justice. He appears in
court or before some other tribunal to assist
the trier of fact (judge, jury, arbitrator, etc.) by
explaining complex technical issues and conveying
expert opinions and conclusions as to the impor-
tance of these issues as they relate to the matters in
dispute.
As it so happens, "expert witness" is a loosely
used term. In fact, a person is not an "expert
witness" until such time as a court of law or some
other dispute-resolution forum confers such recogni-
tion, thus permitting the "expert" to render opinion
as evidence.
"Forensic engineering" is the term now ac-
cepted to connote the full spectrum of services
which an expert provides. These services can begin
very early in a dispute; even before a dispute
materializes, as when a failure of some type occurs
and a party to the project retains an expert to in-
vestigate immediately. Other services comprise
assignment of proportional fault, evaluation of
damages, consultation with the principals and at-
torneys involved to develop strategies, development
of graphics, models and demonstrations to better
communicate technical concepts to lay judges and
juries, presentation of testimony, and many more.
Perhaps as much as 95% or more of all work
performed by all experts engaged in forensic
engineering occurs outside of formal dispute-
resolution forums. Even when a court appearance
is required, the time involved typically is less than
one-tenth that required for research and associated
pretrial activities. But the vast majority of all cases
never reach trial: A settlement is achieved before-
hand, often as a result of experts' findings, the desire
to avoid the enormous costs of a trial and the uncer-
tainty of its outcome.
This guide has been prepared principally for
staff engineers with little or no experience as experts.
Nonetheless, even a few "old hands" may find some
new and valuable ideas presented.
The guide is oriented principally toward a situa-
tion where an engineer is retained by or through an
attorney representing the plaintiff or defendant in
litigation. As is explained, however, this is hardly the
only scenario in which forensic engineering is re-
quired, and the guidance imparted is valid to a
greater or lesser extent for virtually any type of ex-
pert witness engagement. Key among this guidance
is one overriding professional dictum: The sub-
stance of opinions conveyed by an expert
should be the same no matter who has re-
tained him. Some regard such advice as naive, argu-
ing that an expert must advocate the position of his


client in order to render the service he was engaged
to provide. But such arguments are specious. In
many instances a client cannot be sure of what his
position should be until technical issues have been
thoroughly researched. Should the case go to trial,
the expert who has rendered his opinion in a forth-
right, unbiased manner can give testimony that is vir-
tually unassailable. Those who slant their opinions
or insinuate errors where none occurred are vulner-
able. And should this vulnerability be probed to
reveal its hypocrisy, all the expert's statements will
likely be regarded as dubious.
Should a client for some reason insist that his
expert be an advocate, undoubtedly he will be able
to find others who believe sincerely that the pre-
ferred position is the proper one, or who-for a
fee-will adopt that position or any other the client
prefers. In considering a forensic engineering
engagement, therefore, your most important area of
inquiry must concern exactly what is expected of
you. Will you be permitted to do what is necessary
to determine and convey the truth as you perceive
it, or will you be required to support the client's posi-
tion no matter what, through dissemblance and
chicanery? The difference between the two is the
difference between honesty and perjury.








I. PROCEDURES FOR FORMAL DISPUTE RESOLUTION


The research conducted by an expert general-
ly is the same no matter what procedure is used for
formal dispute resolution. The manner in which
conclusions are presented and applied do vary,
however.


Civil Litigation


Civil litigation is the best-known and probably
least-understood dispute resolution procedure. It
plods down a circuitous route as mandated by laws
which differ from jurisdiction to jurisdiction. The
next chapter provides a brief overview of generally
how this procedure works. As a point of fact,
however, it seldom works for its intended purpose.
Decisions relative to highly complex technical issues
are made by laypersons who often gauge credibili-
ty by factors which have nothing to do with the
issues in dispute. And no matter what their decision,
it may be subject to one or more appeals and retrials.
The time involved can be extensive, even when deal-
ing with relatively uncrowded court calendars. But
most court calendars are exceptionally crowded, and
the situation is worsening daily. It is not unusual for
five years or more to elapse before a final verdict is
obtained. The expense involved can be extraor-
dinary, in some cases exceeding the total amount at
issue. It is for reasons such as these that so many
disputes which begin with civil litigation end in out-
of-court settlements. And it is the faults of litigation
which have given rise to so many alternatives to it.


Private Litigation


Private litigation is a relatively new
phenomenon. It requires both sides to agree to
resolve their differences in a court they create and
pay for. A mutually respected individual, such as a
retired jurist, is chosen to act as judge; normal civil
litigation rules usually are followed, except juries
seldom are used. The advantage of this approach is
its swiftness. When major amounts are involved,
literally millions of dollars can be saved.


Arbitration


Arbitration is the best known alternative to civil
litigation. It permits small disputes to be resolved


fairly quickly in most instances, but the time and cost
associated with major issues can often be as onerous
as that associated with civil litigation. Instead of a
judge and/or jury, an arbitrator or panel of arbitrators
is used, selected by disputants through a process of
elimination. In most cases, an arbitrator's
background gives him a general understanding of the
issues involved, and this may modify the role of the
expert insofar as his testimony is concerned. Unlike
litigation, arbitration often eliminates or significantly
relaxes the discovery process, minimizing either
side's ability to examine documents and positions of
the other. This is one of several reasons why some
insurance companies oppose arbitration. Other
reasons include the jurisdictional problems which
can occur, as when some disputants are required to
arbitrate and others are not. In such instances, both
arbitration and litigation may be required to ulti-
mately resolve an issue, and the decision derived
from one may be the opposite of the other.


Mediation


Mediation is a relatively new nonbinding ap-
proach for resolving construction-oriented disputes.
A mediator gains the confidence of the disputants
to probe their "fall-back positions" (the least they
will accept). He than strives to attain a middle ground
both can accept voluntarily. The importance of ex-
pert service in mediation can be particularly pro-
nounced; an expert who acts as an advocate can
destroy whatever hope there is for accommodation.


Mediation/Arbitration


Mediation/arbitration, also known as med/arb
or binding mediation, has been used for many
years to resolve labor disputes. It now is being ad-
vanced by ASFE and the Deep Foundations Con-
struction Industry Roundtable (DFCIR) as a means
for resolving construction disputes. In essence, it re-
quires a mediator familiar with construction arbitra-
tion to intervene immediately after a dispute occurs,
to gather testimony while witnesses' remembrances
are still fresh, and to encourage mediation. If media-
tion fails, the mediator/arbitrator then may impose
binding arbitration, a power which in itself encour-
ages a mediated resolution.
It is anticipated that the specific format of
med/arb will vary somewhat from project to project,













so it is difficult to state exactly what the expert's role
would be. However, the principle behind med/arb
suggests experts would be retained by mediator/ar-
bitrators rather than disputants. Alternatively, if each
disputant selects his own expert, the mediator/arbi-
trator feasibly could compel them to work together
to arrive at consensus opinions, perhaps with the
assistance of an additional expert retained by the
mediator/arbitrator.
Some oppose the med/arb concept, believing
the functions of mediation and arbitration should
be vested in different individuals. Mediation is a
cooperative endeavor whereas arbitration is adver-
sarial. One requires disputants to seek accommoda-
tions while the other requires advocacy. It is wrong,
some attorneys state, to give an arbitrator intimate
knowledge of disputants' accommodative attitudes.
ASFE takes the opposite viewpoint. It believes that
knowledge gained through mediation can help
assure an arbitrated decision which is fair and
equitable to all parties, especially so because deci-
sions would be reached quickly. And unlike arbitra-
tion, med/arb would guarantee rights of mutual
document review.


Hearings


Hearings are conducted for a number of ad-
ministrative reasons; in some instances to resolve
disputes, such as those related to contract protests
or appeals, or to allegations made against licensees.
Other hearings are held more to gather information
prior to making a decision or recommendation
but-more often than not-those presenting
testimony are at odds with one another, and rely on
experts to validate the legitimacy of their positions.
Typical of this type of hearing are those conducted
as part of condemnation proceedings where
minerals, land uses or water are important factors in
setting fair value, inquiries of regulatory bodies
relative to the integrity of structures of different type
and research by legislative committees relative to
natural resources or hazards.


Other


Many other dispute resolution procedures are
being used or developed. Some provide for non-
binding discussions between the various parties,
creating a situation closely akin to mediation; others


involve a form of modified arbitration which is
somewhat similar to med/arb. In all cases, however,
no matter what type of dispute resolution or other
mechanism may be involved, the expert performs
the most valuable service he possibly can when he
presents impartial conclusions based on the ap-
propriate degree of professional inquiry.








II. CIVIL LITIGATION: AN OVERVIEW


The question often arises, If civil litigation is so
dreadful, why is it used so extensively? Insofar as
construction industry disputes are concerned, the
answer can be found in one word: Gamesmanship.
It permits those in dispute to jockey for a position
which will result in a settlement more in their favor.
The damages alleged often are gross exaggerations
of the amounts actually involved; counterclaims fre-
quently are fabrications, as when an engineer sues
for payment, is countersued for errors and omis-
sions, and eventually achieves a settlement which
amounts to little more than a discount on fee. The
time factor also is important. Some people see litiga-
tion simply as a means for delaying payment so they
can continue to use their money to make more
money.
Those with the most money often have the
most to gain. They generally are the ones who can
afford the best legal counsel, the best experts, the
most waiting time, and the high fees needed for the
various proceedings used to wear down the opposi-
tion into a submissive role.
Seldom does litigation run its full course. More
than 90% of all federal suits and some 80% of all
state suits are settled out-of-court. But for those cases
which do proceed to trial, "full course" is not
necessarily attained when the judge or jury delivers
a verdict. The verdict can be appealed, and the ap-
pellate decision also can be appealed. In fact, the full
course in some rare cases is not run until the matter
is resolved by the Supreme Court of the United
States.
The following discussion provides a general
overview of the steps associated with civil litigation.
Note that an expert may start serving almost
anywhere during the process and this in itself is an
important consideration in deciding whether or not
you want to accept the assignment.

The Event


An event occurs which ultimately leads to a
dispute. In some cases the disputants will attempt to
reach accord on their own and/or with the assistance
of their attorneys. When this fails, the dispute goes
into litigation at the pleadings stage.


Pleadings Stage


Civil litigation is initiated when one party (the
plaintiff) files a complaint with the court having


jurisdiction. Also known as a statement of claim,
petition or declaration, the complaint identifies
allegations made against the other party (the defen-
dant), and the nature of relief sought, usually in the
form of monetary damages.
Once the complaint is filed, the defendant
receives a summons, usually delivered in person by
a marshal, sheriff, constable or some other "process
server." The summons identifies the defendant and
action being taken against him, the name of the
court, the name of the plaintiff, and the name and
address of the plaintiff's legal counsel. The defen-
dant typically is given about 20 days to respond to
avoid having a default judgment entered against
him, i.e., failure to respond to the complaint would
cause the judge to rule in favor of the plaintiff.
At this point the defendant usually will retain
an attorney and make an appearance before the
court, i.e., submit a formal notice that the summons
has been received and the defendant is represented
by counsel. Then the defendant and counsel meet
to determine the best course of action. A number
of issues is considered, including the legitimacy of
the complaint, its real value, the plaintiff's financial
resources and ability to support a lengthy trial, the
reputation of plaintiff's counsel, and so on.
In most cases, counsels for the plaintiff and
defendant will attempt to achieve settlement. If un-
successful at first, they will likely repeat the process
numerous times during the procedure, as positions
are altered by time and the course of events. If they
can arrive at an agreement at this point, however,
they will reduce it to writing, then file the docu-
ment-sometimes referred to as a stipulation-
with the clerk of the court. The case is then recorded
as closed.
Alternatively, or in conjunction with efforts to
reach settlement, the defendant can enter a number
of motions to test the substance of the claim. One
of the most common of these is the motion to
dismiss or demurrer. Through this procedure, the
defendant's attorney argues the court should dismiss
the complaint because the plaintiff does not have a
legal right to judgment in his favor, even if all allega-
tions are true. Other motions can be made to chal-
lenge the court's jurisdiction over the claim or the
defendant, or of the formal (as opposed to legal) suf-
ficiency of the claim. For example, if the claim is
vague or ambiguous, defendant's counsel may move
to require the plaintiff to file a more definitive com-
plaint. Or defendant's counsel may move to strike
from the complaint parts deemed redundant, super-
fluous (immaterial) or scandalous.
Among other things, these various motions












create an early testing of the complaint and attitudes
of the parties toward it. Each gambit changes the
scenario, affecting positions relative to settlement.
Once the motions have been made and deci-
sions reached, and assuming the complaint is still
"alive," the defendant must reveal his position with
an answer to the complaint. This answer may take
the form of a denial, an affirmative defense, a
counterclaim or a combination of these.
A denial typically admits certain parts of the
plaintiffs claims are true, but denies others. This
limits the areas of dispute and, if the plaintiff is
unable to prove those elements which are denied,
the entire case fails.
An affirmative defense tends to indicate the
plaintiff's allegations are true, but explanatory facts
have been omitted. For example, the plaintiff may
allege a geotechnical engineer failed to monitor con-
struction and, as a result, errors in compaction were
not revealed until after differential settlement oc-
curred. The defendant would agree, but would in-
form the court construction monitoring was not per-
formed because the plaintiff rejected his proposal to
do so. A plaintiff's contributory negligence would
be another example of facts cited in an affirmative
defense, as would a claim that the statute of limita-
tions had expired.
A counterclaim alleges facts which may have
been asserted by the defendant had he wished to file
suit. It may be based on entirely different claims and
include a demand for damages far in excess of plain-
tiff's complaint. In essence, then, a counterclaim
becomes a cross-suit and the plaintiff must re-
spond, going through the same steps which the
defendant went through in answering the plaintiff's
complaint. In this instance, however, the plaintiff's
answer to the counterclaim is termed a reply.
The complaint, answer and reply (if the answer
is in the form of a counterclaim) comprise the
pleadings and, once closed, they identify the only
issues which can be raised at trial, with the excep-
tion of amendments to the pleadings which can
be made within certain preestablished parameters.
After pleadings are closed, either party can
move for a judgment on the pleadings, whereby
the court examines the strength and validity of the
various claims.


Pretrial Stage


After pleadings are closed, either side files a
notice of trial requesting the clerk of the court to


put the suit on either the jury or nonjury calendar.
Either side can demand and receive a jury trial; in
some cases a judge will decide on a jury trial even
if the disputants prefer otherwise.
Sometime prior to the trial, a judge often will
require a pretrial conference or hearing. This re-
quires attorneys for both sides to appear before the
judge in chambers to remedy defective pleadings,
eliminate superfluous issues and simplify others,
agree which documents are genuine, limit the
number of expert witnesses, determine the scope of
discovery and decide if a master should be ap-
pointed to obtain information pertinent to the suit.
The judge may also order the attorneys or their
clients to make pretrial admissions, whereby one
side admits that facts which help the other side ex-
ist, or that a point being made by the other side is
true. This procedure saves considerable time and
cost.
A judge can also order both sides to engage in
settlement negotiations and report back at a
specified time.
Although the pretrial conference typically is run
on an informal basis, attending it is mandatory. Fre-
quently experts are required to attend to give the
judge background information.
The process of discovery also occurs before
trial, comprising subpoenas duces tecum, inter-
rogatories and depositions. The proceedings
involved can be far more arduous and time-
consuming than the trial itself.
Discovery serves to expedite both trial prepara-
tion and the trial itself. It requires mutual disclosure
of evidence, thus permitting opposing attorneys to
narrow the focus of dispute. It also eliminates the
needless time and expense which otherwise would
be required to obtain certain facts, and it commits
witnesses to that version of facts they relate during
discovery. In addition, it creates a better basis for at-
taining an out-of-court settlement, preserves for use
at trial evidence that may otherwise change or disap-
pear, and removes the "game element" (i.e., surprise
at trial) from litigation.
A subpoena duces tecum is issued by the
clerk of the court (or in some jurisdictions by the
attorney of record) to compel the other party to pro-
vide certain documents. Delivered by a process
server, it usually is accompanied by an affadavit
which identifies more specifically what is sought and
why it is material to the case. The opposing attorney
may attempt to reduce the number of documents
sought either by reaching an agreement with the
other attorney, or by seeking a protective order from
the court. The expert also is subject to a subpoena












duces tecum, and this is cause for particular concern,
as discussed below.
Interrogatories comprise another form of
discovery, whereby one party issues a list of factual
questions which the other must answer under
penalties of perjury. Sometimes experts will be in-
volved in suggesting questions to ask, as well as sug-
gesting responses.
It is far more likely that an expert will be involv-
ed in depositions, a form of discovery whereby the
opposing attorney asks questions of the other side's
witnesses. Each witness is required to take an oath;
a court reporter transcribes everything that is said.
Experts frequently are deposed, and often work with
counsel to develop questions for the other side's ex-
pert. In some cases, both sides' witnesses attend
depositions, one to answer questions and the other
to provide guidance for other questions based on
prior answers.
The transcript of a deposition can be used as
evidence in court. It is not unusual for an expert's
deposition to last for a full week.
A final pretrial procedure usually is a motion
for summary judgment to obtain a dismissal of
the claim or counterclaim or both. Unlike a motion
to dismiss, it alleges a case has no merit because the
party bringing it cannot prove alleged facts are true.


Trial Stage


As the time for trial arrives, attorneys will
answer the calendar call and the suit will be as-
signed a courtroom. If a jury trial is called for, the
opposing attorneys and judge conduct voir dire,
a procedure whereby prospective jurors are ques-
tioned to determine their qualifications. If a juror's
answer indicates a prejudice, a relationship with one
of the parties, a financial interest in the outcome, or
any other situation meriting disqualification, an at-
torney may challenge for cause and state his
reason. Each attorney also is given a certain number
of peremptory challenges, giving him the
freedom to excuse a juror without citing a reason.
Once the jury is impaneled (often with alter-
nates), the trial begins. The plaintiffs attorney
typically starts by sketching the facts he intends to
prove, followed by defendant's counsel who does
much the same thing. Then the plaintiff calls his
witnesses, each being bound by the various rules of
evidence, including the parole evidence rule, the
relevancy rule, the hearsay evidence rule, and
the best evidence rule.


The parole evidence rule makes inadmiss-
able any evidence of understandings different from
those formally entered into (as via contract) when
the formal agreement was established after such
understandings were alleged to exist.
The relevancy rule holds that only evidence
which affects issues under dispute, as outlined in the
pleadings, may be used. It is particularly germane
when considering circumstantial evidence, which
comprises indirect proof or disproof of a fact in
question. For example, testimony that an individual
was seen walking a muddy site would be direct
evidence he was there. Testimony that an individual
was seen with his boots caked with the kind of mud
present on the site would be circumstantial evidence
that he had walked the site.
Even relevant evidence can be excluded by vir-
tue of the hearsay rule, whereby a witness cites
what someone else told him, e.g., that a person was
seen with mud on his boots.
The best evidence rule holds that the best
possible form of evidence must be produced at trial.
In other words, if a document is evidence, the
original (if available) rather than a photocopy would
be used. Such exhibits are subject to voir dire.
It also is a fundamental rule of evidence that all
lay witnesses may testify only to matters of fact; they
may not express their conclusions. Conclusions are
to be made only by the trier of fact, i.e., the judge
or jury. By contrast, expert witnesses are permitted
to state their opinions and conclusions, and these
opinions and conclusions become evidence, pro-
viding (depending on prevailing statutes):
1. the matter on which the expert is testifying
is personally known to him or has been
made known to him at or before the trial
or hearing during which his opinion is
expressed;
2. the matter on which the expert relies to form
his opinions is of the same type that any ex-
pert in the same field would rely on to form
his opinions on the subject involved, and
3. the expert does not rely on any matter which
by law he is forbidden to rely on (the mat-
ter relied on does not have to be admissible
as evidence).
In that an expert's testimony becomes evidence,
and because the testimony of two opposing experts
often will differ, it is up to the judge or jury to deter-
mine who is right and who is wrong.
As soon as an expert takes the stand, he is sub-
ject to voir dire. The attorney who has engaged him
will seek to have the court recognize him as an ex-












pert, after the expert has recited pertinent creden-
tials. Opposing counsel may at this time challenge
the expert's credentials. This seldom is successful
and, in many instances, both opposing counsel and
the judge will stipulate the witness is fit to serve
as an expert, making even direct examination of his
credentials unnecessary. (This can be detrimental in
those instances where the expert's credentials are
particularly noteworthy, especially in comparison to
the opposing expert's.)
Once the expert is recognized as such, the party
for whom he is appearing begins questioning
through direct examination. Under direct exam-
ination, the attorney may not ask leading ques-
tions, that is, questions which show how the
witness is to answer or which suggest the preferred
answer.
After direct examination, the opposing attorney
engages in cross-examination, asking questions
about matters brought up during direct examination.
The purpose of cross-examination is to test the
recollection, knowledge and credibility of a witness.
In practice, however, it is applied to refute or at least
cast doubt upon facts attested to during direct ex-
amination, by catching the witness in a contradic-
tion or something that seems like a contradiction
(impeaching the witness) or by casting doubt on
his character or capabilities, or by causing him to say
or do something which causes a jury to dislike him.
An attorney will engage in redirect examina-
tion to correct misinterpretations of answers given
during cross-examination, or if his witness'
testimony seemingly has been impeached. When an
expert witness is involved, impeachment will
sometimes occur when his testimony at deposition
contradicts what he says at trial. In such instances
opposing counsel usually will not give the expert an
opportunity to explain why the difference exists. To
rehabilitate his expert's testimony, the lawyer will
ask for an explanation during redirect. If the plain-
tiff engages in redirect, the defense can recross,
limiting questions to topics covered in redirect.
The opposing attorney can file a number of mo-
tions while witnesses are being questioned, in-
cluding an objection to a question, answer or both.
If the judge considers an objection valid, the jury (if
one is being used) will be instructed to ignore
whatever was objected to.
Once the plaintiff presents his evidence and all
his witnesses have been fully questioned, he rests.
At this point the defendant can decide whether to
present his case or to settle. If he decides to proceed,
one or several strategic motions can be made. One
of the most common is a motion for a directed


verdict. This alleges the plaintiff has failed to prove
his case. The judge will grant a directed verdict if he
believes all the evidence presented, even if true,
would result in an unbiased jury finding for the
defense. And if the motion is granted, the plaintiff
may not start another case on the same grounds.
If it appears likely to the plaintiff that a motion
for a directed verdict would be granted, he would
react before resting his case by making a motion for
a voluntary nonsuit. This would give the plain-
tiff the right to begin another action on the same
grounds after paying court costs. Presumably the
second action would be stronger than the first, fill-
ing in the various evidenciary gaps which weakened
the initial presentation. (A motion for a voluntary
nonsuit can be made any time before the judge
renders a decision or gives the case to a jury.)
Assuming the plaintiff does not move for a
voluntary nonsuit, and that a motion for a directed
verdict is denied, the defense presents its case,
following the same procedures applicable to the
plaintiff. After presenting his last witness, the defen-
dant may ask for a motion for directed verdict,
whether or not he sought it before. If the motion is
denied, the plaintiff may offer evidence to rebut
what was said by the defendant's witnesses, and the
defendant may subsequently introduce evidence
relative to that introduced during rebuttal.
Once all the evidence has been heard and both
sides rest, either or both can ask for a motion for a
directed verdict. If none is granted, the plaintiff
presents his summation, recapitulating the claims,
commenting on the evidence and stating the legal
principles involved. The defense attorney does like-
wise, with the plaintiff's attorney being given an
opportunity for rebuttal.
After the lawyers have spoken, the judge
charges the jury, reviewing closing arguments,
pointing out the most important issues of law, sum-
marizing the testimony and how the jury should
evaluate it. He usually points out that whoever
brought the claim or counterclaim has the burden
of proof, with proof being based on a
preponderance of the evidence. Either or both
attorneys may also present requests to charge,
either orally or in writing, outlining special charges
for the judge to consider. Either attorney can also ob-
ject to the charge as given.
After it is charged, the jury goes into the jury
room to discuss the evidence. In some jurisdictions
the jury must reach a unanimous agreement in order
to render a verdict. In others, a majority agreement is
all that is needed. If an agreement cannot be reached,
a hung jury results, and the case must be retried.


I












After the jury delivers its verdict, the attorney
for the losing side may make a motion for judgment
notwithstanding the verdict or judgment NOV.
This is essentially the same as asking for a directed
verdict, except at this point it would require the
judge to reverse the jury's decision. A judge may be
more inclined to grant a judgment NOV rather than
a directed verdict, however, due to the appellate laws.
In essence, if he errs in granting a judgment NOV,
no retrial would be necessary; the jury's verdict
would be restored.
If the motion for judgment NOV is denied, the
losing party may then make a motion for a new
trial. Such a motion could be granted for reasons
similar to those which would result in a favorable rul-
ing on a motion for judgment NOV, or for reasons
such as excessive damages being awarded, a pro-
cedural error on the court's part or the opposing
party's use of a surprise that could not have been
guarded against.
If the judge's or jury's verdict is not set aside,
and no new trial is granted, the judge directs entry
of a final judgment for the successful party.


court can be appealed, but only when a particularly
knotty question of law exists. In states which have
an intermediate appellate court, an appeal from its
decision would be taken to the highest court in the
state, usually called the state supreme court or
supreme appellate court. And even that decision can
be appealed, by seeking redress in a federal district
court or even the U.S. Supreme Court.


Post-Trial Stage


A case is not necessarily closed after final judg-
ment is entered. Either party-but usually the party
who lost-can enter an appeal to an appellate court,
because errors were made at trial, the award was ex-
cessive or for other reasons. The appellant must
notify the clerk of the court where the original trial
was held that an appeal is being filed, and must
notify the appellee as well. Sometimes an appeal
is filed principally to delay payment, in that it bars
the appellee from enforcing judgment until the ap-
peal is heard and a verdict is rendered. Accordingly,
the appellant must post a bond to cover costs and
the final judgment, in case the appeal fails and the
appellant's assets are dissipated in the interval.
The appellant's next step is to prepare a record
of appeal. This identifies exactly why the appeal
should be granted, citing whatever precedents may
apply. The appellee also files a record of appeal,
usually to prove the original verdict should stand.
The appellate court consists of several judges and the
court's decision is based on their majority opinion.
They may affirm the lower court's ruling, reverse or
modify the judgment, or grant a new trial. Once the
judges reach their decision, the case is sent back to
the trial court for whatever action is necessary.
In some rare instances, the verdict of an appeals


1









III. FORENSIC ENGINEERING SERVICES


A number of services is associated with foren-
sic engineering. The following discussion should
give you an idea of what you may be called upon
to perform if you have not provided "expert
witness" services in the past, as well as the amount
of time involved. It is doubtful you would be called
upon to render all the services indicated. In most
cases, however, a substantial portion of them may
be necessary in order for you to deliver an effective
service.


Research Plan Development


In determining research requirements, the
forensic engineer should consider the likely cross-
examination which may occur at trial or during a
deposition. Especially at trial, opposing counsel may
employ a "point of vulnerability" attack, concen-
trating on the weakest link in an expert's chain of
testimony. This is done to argue on the principle
falsus in uno, falsus in omnibus (false in one
thing, false in everything). Several key positions are
used to create a point of vulnerability.
The expert was unaware of or
disregarded a fact which if included in his
analysis, would have altered his opinion. The
best defense: Make sure there are no facts in this
category. If something has been determined to be
irrelevant, document why the decision was made
and be prepared to defend it in court.
One of the expert's assumptions was
wrong, making his opinions and conclusions
suspect. Identify all assumptions you have made
and comment why each is valid. Be prepared to
defend any and all.
The expert did not go far enough.
Through his approach, opposing counsel says, in
essence, the expert did a fine job as far as he went,
but he did not cover all the bases and his opinions
and conclusions therefore are wrong. Is there some
additional study or test that feasibly could have been
performed? If so, why wasn't it performed? If the
answer is, "Because we were convinced we already
determined the cause," be aware that you would be
opening yourself up to problems. Opposing counsel
may accuse you of being close-minded. As a general
rule, it is wise to conduct those tests which not only
help prove that something did occur in a certain
manner, but also that it could not have occurred in
some other manner ("diagnosis of exclusion").
The amount of research considered adequate
for a case will be determined by many factors, prin-
cipally the budget involved. Timing may also be a


factor, as well as existing conditions versus those
which existed at the time of the incident.
The minimum amount of research generally is
determined on the basis of what local law says is
necessary for an acceptable expert opinion. Conjec-
ture or possibility usually is not acceptable; absolute
certainty is almost never required. The expert usually
is called upon to render an opinion that is based on
a reasonable degree of scientific probability or cer-
tainty Terms such as I am convinced, I believe, Ifeel,
likely and probably usually are acceptable. In all
cases, however, you should request your attorney to
provide more guidance relative to this matter.

Site Review/Photography


When site conditions are at issue, the site itself
should be visited. An expert witness with firsthand
knowledge of conditions has far more influence than
one whose site information has been garnered
through photographs or other secondary means.
In most cases the site should be visited at least
twice: once prior to conducting research, to gain
familiarity with the area in question, and once again
prior to appearing in court or before an arbitrator,
for purposes of memory refreshment. It may also be
wise to visit the site prior to being deposed, espe-
cially because the deposition has almost as much im-
pact as a court appearance, and because it is likely
that a case which advances to the deposition stage
will not reach the trial stage.
In some instances you may be retained imme-
diately after a failure of some type, under the gener-
ally valid assumption a dispute will ensue. Especially
in these cases a photographic record should be
made. (It is appropriate to use photography at least
during the first visit to the site, no matter when that
visit occurs, for purposes of memory refreshment,
if not evidence.)
If still photographs are taken, it is suggested you
use both an instant-developing camera and a 35mm
camera. If motion photography is employed, con-
sider using a videotaping unit (these can be rented;
many firms have purchased them for use in conjunc-
tion with construction monitoring). In all cases,
record the date and time of photography as well as
weather conditions (cloudy, overcast, etc.) and
temperature. Also, note where you were standing
when photographs were taken, and the kind of
camera, lens and film used.
If aerial photography is required, it may be best
for you to accompany the pilot to assure specified
areas are photographed, and to verify the dates, times

9












and equipment involved.
For the most part, the frame of reference for the
site review services discussed above is civil litigation,
but most would be appropriate for other common-
ly applied formal dispute resolution mechanisms as
well. It is assumed, also, that a continuum of service
is involved. However, in practice, you may be retain-
ed relatively late in the maturity of a case, so you are
less familiar with its background. Such situations
generally will result in more time being spent on cer-
tain functions.
It usually is helpful to employ a pocket dictating
unit when visiting a site, to record impressions gain-
ed. Take graph paper with you, too, to create a rough
sketch that can be redrawn to scale at a later date.
Such sketches can prove invaluable in clarifying a
given issue or fact.


Interviewing Witnesses


Descriptions of a failure, i.e., what happened
first, what happened second, etc., can yield impor-
tant information as to causal factors. In this respect,
it may be appropriate to interview witnesses in order
to gather data. This may be relatively easy when ar-
riving on site after a failure; it becomes more difficult
and time-consuming when done substantially after
the fact.


Identifying Standards of Care


Where there is a question of negligence on the
part of a fellow geotechnical engineer, do not assume
the standard of care you or your firm employs for
the services) involved is applicable. Professional
negligence occurs when a professional's standards
are below those commonly applied by professionals
practicing the same discipline in the same area at the
time the alleged breach of standards occurred. In-
terview other professionals in the area to determine
the standards they employ. If there is wide variance,
speak with more until you feel satisfied you know
what the average is. It is improper to accuse a fellow
professional of negligent performance merely
because the standard of care he employed is below
that you would have followed had you been given
the assignment.
Note, too, that standards are flexible. If the fee
involved was such that it created a limiting factor, an
expert should not fault a peer for doing only what


the fee permitted, unless the limitation was so severe
the work should not have been accepted. For exam-
ple, if better work would have resulted had two per-
sons been engaged to monitor a given construction
operation, but the fee permitted only one, providing
only one is not negligence. By contrast, if proper
monitoring could not possibly have been accom-
plished by just one person, but the professional took
on the work anyway and did not warn the client of
the extraordinary risk, negligence probably did
occur. The same conclusion might be drawn if the
client established the fee based on guidance from the
design professional, and the design professional
assigned an inadequate number of persons, or per-
sons whose capabilities obviously were inadequate
for the work involved.
Of course, standards of care go far beyond issues
of personnel assignments. They also affect check-
ing of calculations, verifying assumptions, keeping
files in order, writing notes, and innumerable other
issues. In all cases, standards applicable to a given
function msut be ascertained, and the expert must
be realistic about the context surrounding their
application.
Note: It is difficult to apply an average standard
of care to work which is out of the ordinary.


Identifying Applicable Codes, Standards,
Regulations, Etc.


As necessary, identify precisely all government
codes, regulations and standards which applied at
the time the project was initiated, including those
on the local, state and federal levels. Where standards
may be referenced, either in a government ordinance
or regulation, or by contract, obtain copies of the
standards, as well as any definitive articles which may
have been written about them and their interpreta-
tion. Recognize that some standards may include re-
quirements which are obsolete or otherwise not
applicable. In such instances it is appropriate to
determine local practice.


Identifying Aspects of the Engagement


It usually is appropriate to review all materials
which form the context of an engagement when a
design professional is accused of inadequate per-
formance. Such materials include the request for pro-
posal (if any), proposal rendered, and contract












documents (including workscope). Reports also
comprise evidence in this regard, since they may
indicate restrictions imposed, e.g., inability to study
certain factors or perform certain services because
the client was unwilling to pay the fee required. Proj-
ect notes or memoranda also may provide insights,
as to when, where and by whom a design profes-
sional was told to stop or start a certain activity.
In evaluating the adequacy of a workscope,
recognize that the manner in which it was developed
is critical; standards of care may be an important fac-
tor. If the client merely told an engineer to "do what-
ever you think is necessary," the engineer may be
solely responsible for workscope adequacy. If at the
other extreme the client issued a specific workscope
and asked for a lump sum bid, the engineer possibly
had the right to assume the client knew what he was
doing, was relying on appropriate guidance to
develop the workscope, and had alternative means
for obtaining any basic services not listed. Should
an engineer call obvious workscope errors or omis-
sions to the client's attention? That question may be
best answered in terms of standards prevailing in the
area at the time in question.
Particularly in cases where a design professional
has been engaged for the first time by a client accus-
ing him of negligence, it may be appropriate to
review whatever promotional materials the design
professional employed to help secure the engage-
ment, such as a brochure or proposal. If these pro-
claim the firm provides a quality of service sharply
disconsonant with the quality actually rendered, the
firm could be accused of failure to deliver on its
promises, false advertising, and so on. In this respect,
it may also be appropriate to determine facts such
as those indicating how familiar the client was with
the services involved and how many design profes-
sionals of the same discipline he retained in the past.
Likewise, it would be worthwhile to determine if the
client was given guidance materials, such as ASFE's
PAESAR, Geotechnical Engineering: A Message to
Owners, or Geotechnical Engineering: A Message
to Civil Engineers and Architects.




Identifying Management Methodologies


The manner in which a design professional
managed the services he was accused of perform-
ing negligently may be an important issue. Factors
which may merit consideration relate to technical


procedures and quality control manuals, job descrip-
tions, qualifications of individuals filling various
positions, continuing education requirements and
related firm benefits, manner in which records of
continuing education are kept, techniques employed
to estimate project manpower requirements and
scheduling, procedures used to assign project
responsibilities, oversight/quality control review
mechanisms employed by the firm, and so on.
Again, evaluations of all such factors must consider
standards of care prevailing in the area at the time
services in question were rendered.



Research of Others' Opinions


It is critically important for an expert to be fully
familiar with a variety of opinions (and who pos-
sesses them) as to the general theories involved as
well as the specifics. Generally speaking, two ap-
proaches are taken.
First, review the various texts related to the mat-
ter. Determine (through survey if need be) which are
regarded as the most authoritative in the field and
which are not. Satisfy yourself that older texts are
(or are not) up-to-date. Also, review professional jour-
nals and other similar periodicals of relatively recent
vintage to determine what has been written about
the subject and by whom. Through this type of pro-
cedure, you can verify that you are taking the pro-
per direction in your technical research, and that
your conclusions are supported by leading figures
in the field. In addition, it will help you prepare for
any "curve balls" a cross-examiner may try to throw.
Second, review anything the opposing expert
has written, as well as his deposition (if already
taken), research report (if submitted), etc. A review
of an opposing expert's testimony during prior trials
also will be helpful. (Your attorney should be able
to obtain transcripts for you.) Through this ap-
proach, you will be in a position to know the direc-
tion the opposing expert may take, and should also
be able to identify potential "soft spots."
Note that it may be advisable to go beyond
specific matters associated only with the opposing
expert. If you are working for a defendant geotech-
nical engineer, for example, a thorough review of
what he has written, said, etc., may be appropriate,
to identify points of vulnerability. And, since the op-
posing expert may be reviewing what you have writ-
ten and said in the past, a review of that may be
helpful, too.












Individual Background Checks


Background checking goes far beyond identi-
fying others' opinions. The research involved can
be extensive, relating to basic engineering education
(professors, texts read), continuing education (semi-
nars or other courses attended, instructors, texts),
magazines and journals regularly read and articles
germane to the case, papers published, other clients
served, previous projects, and so on.
If you are working for a defendant geotechnical
engineer, it is reasonable to assume the plaintiff will
be checking his background. The defendant should
therefore be in a strong position to defend any ac-
cusations. For example, if an engineer read a text in
college that advised performing a certain function
differently from the manner in which he performed
it, why? Is the text now out of date? Was the author
citing a personal preference only? Remember: The
plaintiff may employ "every trick in the book" to
somehow cast aspersions on the professionalism and
competence of the defendant. If the defendant is un-
prepared for the questions which may be asked,
awkward answers could result, needlessly damag-
ing the defendant's position. Accordingly, it may be
appropriate for you to perform a background check
of the defendant you are working for, looking for
potential problems and developing with the defen-
dant effective answers to otherwise embarrassing
questions.
If you are working against a defendant design
professional, your client may request you to assist
in developing material for an assault on his com-
petence or integrity. It is your responsibility to do
so, just as it is your responsibility (to yourself and
your own perceptions of right and wrong) to point
out the inappropriateness of certain lines of ques-
tioning. (Good attorneys usually limit their back-
ground attacks to legitimate areas of inquiry Trying
to make a mountain out of a molehill-or even out
of thin air-has a serious backfire potential.)
It is becoming continually more advisable to
also check the background of the opposition's ex-
pert. Regrettably, some are no more than "hired
guns," willing to say almost anything the client wants
to hear. Such individuals should be drummed out
of the profession; they violate ethics and public trust.
When the opposing expert is unknown to you,
speak with peers and colleagues to obtain informa-
tion. What are the individual's credentials? How
many projects similar to the one in question has he
served on? What type of firm was he working for
at the time?


In the case of an expert who works for another
consulting engineering firm, learn something about
the firm. What type of work does it do? Who are
some of its major clients? Does it do work for the
other party? Does it perform work for someone
somehow related to the other party? In essence, can
you determine through investigation that somehow
the opposing expert is not unbiased.
Similar questions can be asked of a university
professor who also acts as an independent consul-
tant. In addition, identify the grants received by the
college or university which employs the professor.
It may be found that the institution or one of its
departments is somehow "beholden" to a given in-
dustry or firm. Such a relationship in fact can bias
opinions, and thus should be made known. The ex-
tent of research required in this regard often will
depend on the dispute's point of evolution. If the
opposing expert has not yet been deposed, it may
be helpful to obtain extensive background detail.
Alternatively, most such detail can be obtained dur-
ing a deposition; in some cases through inter-
rogatory. However, at earlier points in the case's
development, one cannot be certain that the opposi-
tion's technical consultant in fact will become its
expert witness.
In most instances it will be worthwhile to ob-
tain transcripts of other trials at which the opposi-
tion's expert has served. They will convey valuable
information about his competence at trial, how he
answers questions, and so on. This can be particular-
ly useful later when you may be called upon to work
with your attorney in preparing his cross-
examination of the opposition's expert. In some
cases the transcripts may suggest it's best to pose no
cross-examination at all. In other cases they will sug-
gest questions which would be designed principally
to take advantage of an expert's weaknesses: polite
questions constructed to trigger the expert's "short
fuse" temper, or those which encourage him to em-
bark on a long, boring lecture that tries the patience
of the judge and jury.
The types and amount of cases which an expert
accepts also may be an issue. An expert who accepts
only cases in defense of fellow geotechnical engi-
neers exhibits bias, and can thus feasibly weaken the
arguments of the side he serves by creating a point
of vulnerability. Likewise, an expert who serves far
more as an expert than an engineer in independent
private practice feasibly can weaken his side's posi-
tion, in that his experience with the service "delivery
system" can be questioned.
The "delivery system" issues can also be raised
when a professor is the opposing expert. Such indi-


r











viduals may be highly qualified to comment on the
integrity of design, but not so effective when the
issue relates to standard of care. The private sector
work which professors perform tends to be substan-
tially different from that of their independent col-
leagues, due to (typically) fewer time and budget
pressures, plus the ability to rely on graduate stu-
dents (free labor) and university facilities. In fact,
however, some have very little private sector work
to their credit, or none at all. As such, their com-
ments about what they would have done in areas
such as manpower assignment, et al., often can be
attacked. They have not had to contend with pref-
erences of clients and other design professionals
who need to stay within a budget, and so on.
Of course, just as you may be called upon to
look into others' backgrounds, others may be inves-
tigating your own. You thus should be completely
familiar with any points of vulnerability created by
your own past. The attorney you are working with
should be made aware of these weaknesses from the
outset. If they are deemed of little consequence, he
should work with you to assure they can be ade-
quately defended should opposing counsel attempt
to make an issue of them.


Case Research


Case research ordinarily is the exclusive domain
of attorneys and their support staffs. However, ASFE
members have at their exclusive disposal the ASFE
Newslog Topical Index Retrieval Service. The ASFE
Newslog Topical Index identifies a number of issues
which have been resolved through litigation or other
means of formal dispute settlement. The background
information used to develop the articles is available
to ASFE members through the ASFE office. A few
moments of research in this regard could feasibly
provide some valuable assistance.


Claim Evaluation


You may be called upon to evaluate the reason-
ableness of the damages being claimed, assuming all
alleged facts are true, or under other assumptions.
If you are a claims expert, thoroughly familiar with
appropriate evaluative techniques for the types of
damages sought by and/or from the type of entity
involved, you obviously have no problem. However,
if you are not expert, say so and encourage reten-


tion of someone who is, be it for establishing a claim
or counterclaim, or refuting a claim of the opposi-
tion. (See "Retention of Additional Experts," below.)


Review of Others' Research/Liaison


It is not uncommon for an attorney to retain
more than one expert, each a specialist in a different
field. More often than not, however, these fields are
related, making it essential for each expert to review
others' work, to help assure conformity of assump-
tions and related issues. In major cases, more than
one expert in the same field may be retained. While
it is fully acceptable for the two (or feasibly more)
to disagree about specific issues, the issues involved
should be so minor as to not bear materially on the
case, creating a "six-of-one-half-a-dozen-of-the-
other" situation.
In some cases two experts specializing in the
same field will be retained to perform different func-
tions. For example, one may be particularly adept
in the field of research, but incapable of presenting
effective testimony, something which is the other's
forte. In such situations the latter would review the
work of the former, and converse with him in depth
to help assure he understands and agrees with all
research findings.
In some instances you may be retained to
replace another expert who has been dismissed
because he cannot support the case. You should be
apprised of this situation if it occurs, and should have
the freedom to confer with the other expert. If you
disagree with his position, so be it. But if he is
familiar with information you should become aware
of, it is far better to know about it early on, to avoid
wasting time and-in particular-to avoid embar-
rassment at trial.


Retention of Additional Experts


In some instances it will be necessary for you
to retain additional experts, either for special
assistance in a certain facet of geotechnical engineer-
ing or in a related discipline. In some instances the
need will be apparent from the outset; in others it
will emerge only during research and inquiry. With
approval of the client, you may be required to: iden-
tify specifically what type of expertise is needed and
candidate experts; speak with the candidates to
determine their availability; discuss and help develop












workscope, schedule and budget; negotiate fee, etc.
Consideration also must be given to the working
relationships involved, collaboration on reports, and
such other matters which will help assure an effec-
tive, coordinated, cooperative service.


Collaboration with the Opposing Expert


Most attorneys frown on their experts col-
laborating with the opposition's experts, but not all
do. Generally speaking, when two reputable experts
are involved, the collaboration centers on facts only,
and helps assure both are working from common
understandings. It also presents opportunities for
economies, as through mutual payment of testing
and exploration fees, etc.
Most attorneys are opposed to such collabora-
tion for fear their expert may reveal a particularly tell-
ing point to the opposition. This is not the point of
collaboration and, in any event, should never be per-
mitted to occur. As experts in favor of collaboration
see it, the service works in the cause of justice rather
than the advocacy which is attorneys' domain.
Do not under any circumstances engage in col-
laboration unless you have your attorney's express
permission to do so.


Subsurface Exploration


It may be necessary to engage in subsurface ex-
ploration to ascertain conditions. Other parties may
face the same requirements. In such instances it may
be appropriate to pool resources, for purposes of
economy. Before such joint endeavors are agreed to,
however, ground rules must be established as to ex-
actly what will be done (type of sampling, depths
involved, equipment to be used, tests to be con-
ducted, etc.), where and how samples will be stored,
accessibility of samples, how costs will be shared,
and so on. If you are reluctant about entering into
such a shared venture, it may be best not to.
In any event, be certain that everything is done
properly, as would be the case in any geotechnical
investigation. This relates to having permission to
enter onto the land, being aware of any buried util-
ities or known hazardous materials, etc. It is sug-
gested that you should personally supervise allfield
activity; failure to do so can lead to embarrassment
during cross-examination: "How do you know all
this drilling and testing was done absolutely the way


it should have been?" It may be appropriate to create
a photographic record of all site activity. Check with
counsel.


Testing


It may be necessary to conduct certain destruc-
tive or nondestructive tests. Before deciding on
which tests to conduct, consider the appropriateness
of each by virtue of the Frye Rule (derived from Frye
v. United States, which revolved around the admis-
sibility of polygraph test results). This holds that a
given testing technique must be generally accepted.
Three methods are applied to determine this: expert
testimony, scientific and legal writings, and judicial
opinions. When commonly applied procedures are
employed, the court will take judicial notice, i.e., the
expert does not have to testify as to the theory and
application of a test before testifying to results. In
all cases applicable ASTM or other generally accepted
standards should be followed.
All interested parties should usually be notified
of any tests which will be performed. It usually is
advisable for the expert ordering the tests to be
physically present when they are performed. Other-
wise the individual in charge of testing may have to
testify.
Note that special rules and precautions generally
must be followed when destructive tests are per-
formed on evidence. It may be necessary to obtain
the concurrence of other parties, photograph the
evidence before testing, have others present to
witness the testing, etc. Speak with your attorney for
additional guidance in this regard.


Report Preparation


Several reports often will be required. The first
report customarily is given orally, after your initial
review of the matters at hand. You would identify
your understanding of the case, your suspicions as
to exactly what occurred, the nature and extent of
research required to reach definitive conclusions,
and likely fees and expenses involved. This report
is given to the attorney who contacted you, permit-
ting him to determine whether or not your position
will be supportive of his client's. Some attorneys at-
tempt to cajole experts into performing the work re-
quired to develop such a report without charge, as
if it were part of a proposal. Good attorneys will not











attempt to "pick your brains" until after a fee for the
work involved has been agreed to, and a contract has
been signed.
The second report usually is in written form,
and is referred to as a preliminary report. This
would be submitted at some predetermined time, as
when initial research has been completed, to indicate
findings to date, additional research or testing re-
quired, and so on. The format employed may or may
not be similar to that customarily used for a final
report. Counsel should provide guidance about for-
mat, as well as cautions relative to your presentation
of preliminary findings and conclusions that may
later change.
The final report sometimes follows a specific
format. The one indicated in Exhibit 1 is based on
ANSI/ASTM E620-77, "Standard Practice for Report-
ing Opinions of Technical Experts."
In all written reports and in any formal
testimony-either written or oral-use the
same caution you ordinarily would apply in
developing a routine geotechnical engineer-
ing report. In other words, frame your thoughts
carefully; use words and phrases that are not easily
subject to misinterpretation, and avoid absolutes
(such as all, every, always, or never) unless they are
required (which is seldom).
In estimating fees for the development of writ-
ten reports, consider the time you will require for
developing the first and subsequent drafts, as well
as editing and proofreading them. (Some time may
also be required to review drafts with your attorney,
but the advisability of such review is questionable.
If such review is made known through cross-
examination, it could be construed that the attorney
is telling you what to report.) Consider also the time
of others who may be involved, including peers you
call upon to review and comment, and clerical per-
sonnel for typing, assembling, photocopying and
distribution, as well as the cost of duplication,
postage, messenger services, etc.
Some attorneys prefer their experts to prepare
no written reports at all, to make their findings im-
mune from a subpoena duces tecum. For this reason
the first report is almost always given orally; it
feasibly could contain negative findings.
Also, some attorneys want their experts to keep
them informed of developments and therefore re-
quest weekly or biweekly status reports. This is par-
ticularly the situation when the case is somewhat
complex, and the expert is coordinating the activities
of several others who have been retained. Determine
what your client's preferences are in this regard and
plan accordingly.


Participation in Pretrial Hearing


In litigation, the judge handling the case will
likely call for a pretrial hearing to simplify issues and
otherwise streamline the case. Experts for both sides
may be asked to appear via subpoena. If you receive
such a subpoena, let counsel know at once. If you
are unable to meet the schedule set forth, let counsel
know that as well. Generally speaking, a pretrial
hearing lasts two to three hours.


Identification of Materials Needed


Some of the items you will need to review may
be attainable only through discovery and a subpoena
duces tecum. As an expert, you should be able to
delineate what types of documents are required. As
to the opposition's expert, however, his work
products-as yours-usually are protected by an ex-
tension of attorney-client privilege, at least until he
is the officially designated expert witness. And once
his files can be obtained, there will be little if
anything in them which bears negatively on his
client's position. Note, however, that rules relative
to what is and is not privileged information differ
from jurisdiction to jurisdiction. Speak with your at-
torney to determine what you can request and when
you can request it; how these rules affect you and
your work products, and appropriate precautions.
In most cases experts can be asked to provide copies
of everything upon which they will base opinions
and conclusions revealed during a deposition and,
later, at trial.


Participating in Interrogatories


Counsel may request you to develop questions
that will be posed to an opposing expert witness, op-
posing geotechnical engineer defendant or plaintiff,
or some other party to the dispute. Alternatively or
in addition, he may ask you to review and analyze
responses and comment on their significance or im-
plications for further research or discovery activities.
Likewise, you may be asked to work with another
member of your team to assist in responding to in-
terrogatories, or you may have to respond yourself.
Especially in this latter instance, work closely with
counsel. He may have objections to certain questions
and seek to have them eliminated.


I_












Preparing for and Participating in Depositions


In many cases you will be deposed by opposi-
tion counsel and will be asked to participate in the
development of questions used to depose other
witnesses (particularly the opposition's expert). A
deposition amounts to a cross-examination without
benefit of direct examination, and in many other
respects is similar to what would occur at trial (if
there is one). Counsel will appear with you. A court
reporter will be present to develop a transcript. All
witnesses testify under oath. If the case does pro-
ceed to trial, the transcript is a key factor in develop-
ing questions and overall strategies.
You will be formally notified of your deposition
by a subpoena which identifies when and where the
deposition will occur. This rarely comes as a "bolt
out of the blue." Attorneys for opposing sides
generally work together to establish dates, times and
places that are convenient for one another. In some
jurisdictions there are limits on how much notice
must be given, how far distant the deposition's locale
may be, and so on. In all cases, notify counsel of ser-
vice of the subpoena and have him establish alter-
native dates if necessary.
Some of the typical areas of inquiry covered in
a deposition are indicated in Exhibit 2, a check list
such as would be used by an attorney. Some of the
questions will be posed in a straightforward man-
ner; many will take the form of hypothetical ques-
tions hypotheticalals", e.g, "Mr. Smith, if you were
told to monitor construction of this foundation,
would you have assigned. ." Accordingly, to
prepare for a deposition, you should work with
counsel to develop the questions you likely will be
asked, and to develop answers. In all cases your
answers must be honest. However, it could be highly
damaging to your client's case to provide more in-
formation than is necessary to answer a question.
For this reason counsel should hold a predeposition
conference with you. During this conference he
renders a mock deposition, asking questions you
have developed, and perhaps trying a few trick ques-
tions of his own, all to determine the effectiveness
of your answers and demeanor. He feasibly may ask
you to shade a response one way or another. In all
cases you must resist pressure to provide an answer
which in your opinion is false or misleading. If
necessary, try to convey your thoughts by alternative
methods that are acceptable to you and to counsel.
You may also be asked to assist in development
of hypothetical which may be asked of the defend-
ant or plaintiff you are working for, especially when


he is a peer. Such involvement may extend to work-
ing with the peer in creating acceptable and effec-
tive responses, and to critiquing responses given dur-
ing a predeposition conference.
It also is common for experts to assist their at-
torneys in developing hypothetical that will be
asked of the opposition's expert and/or opposing
plaintiff or defendant peer. You may even work at
developing follow-up questions, and serve as the
mock deposee to evaluate and help improve your at-
torney's performance.
Do not underestimate the time required to
prepare for a deposition. There is an art to develop-
ing hypothetical questions and it may take a while
to get "the hang" of it. More than one predeposition
conference may be needed, and even one can last
several hours. So can the deposition. In fact, it is not
particularly uncommon for an expert's deposition
to last as long as one week or more. In such in-
stances, however, the deposition can be recessed
from time to time and-if it is agreeable to the par-
ties involved-it can also be conducted during
weekends.
Be certain to carefully delineate exactly what
type of deposition work will be asked of you.
Recognize this could include your presence at the
deposition of the opposing expert and/or opposing
peer, to develop follow-up questions for counsel to
pursue. In fact, if extensive deposition activity will
be necessary, can you conveniently make available
the several weeks or more required?
Note: For purposes of calculating fees, realize
that opposing counsel usually must pay for the time
and reasonable expenses you incur (travel, accom-
modations, meals, etc.) to give a deposition and
review, correct and approve the transcript. However,
opposing counsel does not pay for your time to
prepare for a deposition. Some well-established ex-
perts send a bill for services rendered to the oppos-
ing counsel before attending the deposition, and will
also in their agreements with the counsel retaining
them commit the latter to paying any reasonable fee
or reimbursing any reasonable expense opposing
counsel does not pay or fails to pay in a timely
manner.


Development of Graphics, Models,
Demonstrations


Visual aids can be extremely valuable in sup-
porting testimony. An individual's retention of infor-
mation related orally may be as low as 35% (or











lower). By contrast, 85% of demonstrated facts may
be retained. In addition, many courts are favorably
inclined toward graphics, models and other devices
which better explain technical matters, not only
because they assist the jury by making technical
issues more understandable, but also because they
help relieve the tedium of a trial.
Budget often is a factor in determining the ex-
tent and complexity of graphics, models and demon-
strations. In all cases, materials should be well-
developed. This does not necessarily mean they
must be elaborate. They merely have to demonstrate
the point well, something which can be ascertained
beforehand by trying them on someone without a
technical background.
If plans are involved, it usually is better to
prepare a diagram rather than using the originals.
The diagram could use color and other techniques
to differentiate one area or one condition from
another.
If a graph is to be used, rely on a natural scale
rather than a logarithmic scale.
In all cases, be sure to use large, bold-face print.
In most cases it is appropriate to use a large version
of the graphic and mount it on an easel so the judge
and jury can see it. Copies of whatever is shown in
such a manner (or through slides or overheads)
should be provided to the judge and jury.
If it is necessary to show geological formations,
such as a bedrock surface, consider the use of a
three-dimensional model rather than a two dimen-
sional illustration.
If you intend to project an image, using slides,
overheads, filmstrips, etc., be certain the courtroom
can accommodate your plans. It must be capable of
being darkened, and should provide enough room
for setting up a screen (where the judge and jury can
easily see it) and projection equipment. It usually is
wise to also bring an extra projection bulb, an ex-
tension cord and a projection table.
In some instances a concept can be illustrated
best only through a demonstration of some type. In
all such cases, be absolutely positive the demon-
stration will work exactly as planned before the trial
starts. And also be certain your attorney is aware of
what you plan. Some demonstrations require more
than commonly found objects, and in these in-
stances the wisdom of developing a working model
should be considered. Although working models
can be expensive, they can also have dramatic im-
pact. In one case a model designed to illustrate soil
loss in open-graded gravel was so effective the op-
posing attorney who saw it settled that night. If a
model or some other type of demonstration is too


large or too complex for courtroom demonstration,
it usually can be videotaped. Witnesses generally are
required to watch such demonstrations and, if neces-
sary, to testify in court as to what they saw, what
transpired when the videotaping (or other filming
equipment) was shut off, etc.
Unless you have high-quality in-house capabil-
ities, it generally is best to have graphics, models and
so on prepared by outside specialists. They often can
prepare a better finished product at a cost to the
client which is less than that which you would have
to charge.


Case In Point

An expert surprised his attorney during his
testimony by stating a certain type of stress frac-
ture would be virtually identical to that which
would occur were a piece of chalk broken in
half. Whereupon the expert took a piece of
chalk and broke it. Exactly the type of fracture
predicted occurred. The jury was most im-
pressed and the demonstration was a significant
factor in the expert's side winning the case.
After the trial was over the attorney congratu-
lated the expert for his work, but chided him
for not clearing the demonstration first. "Not
to worry," the expert said. "It works this way
every time. Watch." Whereupon he broke
another piece of chalk and, to his surprise, the
type of fracture was completely different.




Preparation of Testimony


You may be called upon to provide two types
of testimony. The more common is that which you
give orally at trial, under certain common guidelines
relative to direct examination. There also is prepared
testimony that can be inserted or read into the
record. If a final report has been prepared, it feasibly
could be used as this second type of testimony.
The testimony you will give orally starts with
direct examination. Counsel may not ask you leading
questions, but he can pose hypothetical based upon
the facts in the case.
While some of the work you will have done in
preparation for your deposition will be of value,
chances are a number of new hypothetical will have
to be prepared. They must be designed and inter-












related in such a manner as to assure facts, opinions
and conclusions are presented in a logical progres-
sion, so the trier of fact better understands the scien-
tific and other issues involved. For this reason, also,
oral testimony should rely to as great an extent as
possible on common English usages, as opposed to
technical terminology and buzzwords. The highly
technical aspects of testimony generally can be con-
fined to formal prepared testimony inserted in the
record, or they can be brought out through cross-
examination. During direct testimony, the goal is to
acquaint the trier of fact with your opinions and con-
clusions, which become evidence. Avoid the com-
mon mistake of dwelling on the scientific work
which leads you to your opinions and conclusions.
While it may be fascinating to you and other tech-
nically inclined individuals, the trier of fact usually
proceeds under the assumption that you know what
to do to reach conclusions, unless an unusual test
of some kind was performed. When commonly ac-
cepted research methods are employed, they need
be touched upon only lightly in oral testimony;
elaboration can be provided in written testimony.
This approach permits you to concentrate on the
opinions and conclusions. And by using common
terms, supported by analogies to everyday events or
conditions, as well as graphics, models and demon-
strations, as appropriate, you will help assure the
understanding required to make your testimony as
effective as possible.
Preparing oral testimony for direct examination
should always comprise a thorough review of all ap-
plicable deposition transcripts and should always in-
clude review by counsel. This review will lead to
refinement, and it is not uncommon for experts to
develop several drafts before a final version ulti-
mately is derived. In all cases it also is advisable to
rehearse oral testimony with counsel at least once,
to help assure both you and he are completely famil-
iar with what will be asked and how it will be
answered. Time also should be allowed for dry runs
with others, at home or at your office. The more
familiar you are with the points you wish to make,
the more convincing you will be.
Bear in mind that your case may be decided en-
tirely on the transcript. While half-sentences may be
fully understood within the context of the trial, they
may convey the wrong impression or even the
wrong answer when recorded word-for-word by the
court reporter. Likewise, if you will be using a
graphic of some type, do not say something such as,
"As you can see here in the northwest quadrant of
area 3. .."
During rehearsals, and especially at trial, do not


read from the written version of your oral testimony.
Doing so weakens your credibility. "After all," a lay
person may reason, "anyone can read from a pre-
pared text. An expert should be able to relate facts,
opinions and conclusions 'off the top of his head,'
especially if he is truly familiar with the case in-
volved." Accordingly, you may want to prepare ef-
fective notes that you can bring with you to the
witness chair (if your attorney concurs). Be careful
how you prepare and organize these notes. Gen-
erally speaking, it is effective to rely on a loose-leaf
binder format, with each page of notes being con-
fined to one subject or concept, and being followed
by appropriate back-up information. This makes it
easy to find source material quickly, and putting note
pages and back-up information pages on different-
color paper can expedite the process even more. For
example, the first page of notes (photocopied on
white paper and inserted in a clear plastic envelope)
could be followed by photocopies of related pages
of written testimony and/or the final report
(photocopied on blue paper), in turn followed by
resource materials, such as boring layouts and logs
or test results (all photocopied onto yellow paper).
All this would be followed by the second page of
notes, set off from prior materials by the clear plastic
envelope. Note: If you read your written testimony
into the record, or if it is simply inserted, obtain a
copy of the transcript; indicate on the pages of your
written testimony in your notebook on what pages
in the transcript the material is repeated. Opposing
counsel during cross-examination may refer to
points you make in your written testimony, but he
may be referencing either what you prepared or
what was read into the record. It is helpful if you can
respond, "That was covered on page eight of the
written testimony, which is on page 12 of the
transcript."
By organizing your notebook well, it is far
simpler to jog your memory when needed and to
respond to questions. It enhances your image while
helping you avoid the "absent-minded professor"
image which could seriously damage your credibil-
ity. Note: The judge and opposing counsel can
examine whatever you bring with you to the
witness chair. Be cautious about any marginal
notes you make.
Of course, your testimony will also comprise
answers to questions posed during cross-
examination. To a substantial extent you will be
prepared for this cross-examination by virtue of what
you have done for deposition preparation. None-
theless, different facts may have come to light since
the time of the deposition (which could have oc-


_ _












curred months or years before), new or altered opin-
ions may exist, etc. Also, a review of deposition
transcripts may indicate a number of weak spots
(some of which usually will be anticipated through
inclusion in direct examination), or certain positions
opposing counsel is trying to establish.
The manner in which opposing counsel pur-
sues a cross-examination in court usually will differ
markedly from the approach taken during a deposi-
tion, in that much more of an effort may be made
to attack your credibility, capabilities, research efforts
and so on. You cannot know for a certainty to what
extent-if at all-opposing counsel may take this line
of attack. However, valuable guidance can be ob-
tained through review of transcripts of similar trials
where opposing counsel has served. Often a pattern
will emerge, where it becomes obvious the same
questions are asked time and time again, and you can
also see the types of responses which seem to be ef-
fective or counterproductive. (Just reading such
transcripts [no matter who the attorneys are] can be
helpful if you have not previously been cross-
examined.) If counsel has not furnished such
transcripts to you, it generally is a good idea to sug-
gest that he do so. The information they yield can
be highly valuable. In all cases, it usually is valuable
to identify the questions opposing counsel may ask
during a cross-examination, and to develop effective
answers. New hypothetical and responses may have
to be developed or those developed earlier may have
to be refined; rehearsals should be conducted, too.
These rehearsals should include some of the "trick"
questions which opposing counsel may try. Also, be
prepared for a challenge to your credentials and to
the admissibility of exhibits you wish to introduce
as evidence.

Trial Preparation


Trial preparation may go beyond preparation
and rehearsal of testimony and development of
whatever graphics, models or demonstrations you
may need to support testimony. For example, you
may be called upon to help develop direct and cross-
examination testimony of others you are working
with, as well as cross-examination hypothetical your
counsel may use on the opposing expert and/or op-
posing peer. These also may require extensive
rehearsal.
In some major cases, counsel may go so far as
to conduct a mock trial, using a group of lay persons
to serve as a jury, and stand-ins to serve as members
of the opposition team.


Preparation also comprises reviewing a number
of issues with your attorney, to help assure you are
familiar with exactly what is expected of you (when
to arrive, where to sit, etc.).


On-Call Service


On-call service means setting aside time during
which you may be called to testify, depending on
what happens with a court calendar. This usually
comprises some inconvenience, in that it may restrict
any travel plans you have or may require you to dash
from a meeting just under way. A good attorney will
seek to minimize on-call requirements by keeping
posted on developments and keeping you informed.
But sometimes attorneys get very busy and simply
demand that a large block of time be set aside. The
best way to help minimize on-call service is to charge
for it at some reasonable rate, usually at a percentage
of the normal rate for actually appearing in court.

Trial Participation


Even relatively simple issues can result in a
lengthy trial, because most trials are frequently in-
terrupted by numerous other matters a judge typi-
cally has to tend to. An experienced attorney usually
can give you a fairly accurate reading of how many
hours (more commonly, how many days) you will
be involved, and he will inform you as well relative
to what portions of the trial you should attend. Some
prefer that the expert be on hand until the case is
given to the trier of fact to decide. Your schedule
must be kept open at least for the days likely to be
involved, and-very often-for at least one or two
days after the anticipated close, "just in case."

Storage

All materials relative to the case must be prop-
erly stored. For documents, this may include a fire-
proof file. For evidence or samples, however, far dif-
ferent storage may be appropriate, as to help assure
their security and integrity (e.g., to prevent decom-
position or drying out). Ample space must be avail-
able or obtained, and a fee commensurate with the
service should be imposed. Note that a number of
administrative procedures frequently are required,
as to track who removed something from storage,
for what purpose, when it was returned, and so on
(see Exhibit 3).












General Consultation


It is likely that the attorney will contact you to
review a number of issues at different times during
the course of the case's maturation. This can be con-
sidered general consultation, or-perhaps more
accurately--'miscellaneous time."


Administration


Project administration is not generally cate-
gorized as a separate service for routine geotechnical
engineering work. Forensic engineering is not
routine, however, unless it is a specialty of the firm.
Special administrative issues must be addressed, and
they will require more time and attention than other-
wise. If a separate fee is not established for adminis-
tration, any special administrative services required
should be considered in general rates established for
forensic engineering services.












A number of "detail" issues should be resolved
before trial. Of particular concern, of course, are
those relative to timing, and these have been alluded
to in the prior chapter. In essence, you have to have
a good grasp of how much time certain tasks will
take, and when certain events are scheduled (testi-
mony rehearsals, for example).
The issues covered below are those which
apply particularly to a trial, and especially when a
jury is the trier of fact. Many of the issues also relate
to a trial where the judge will try facts, as well as to
depositions and arbitration hearings.

Time and Place
Determine exactly where the trial will be held: what
building, on what floor or in what wing of the
building, and in what room. In a similar manner,
determine exactly where you are to meet your attor-
ney and at what time. If you are unfamiliar with the
hearing site, ask the lawyer how to get there by
whatever mode you will be using. If by automobile,
determine where you should park and how much
travel time you should allow (considering the pos-
sibility of rush-hour traffic). If the site is distant, and
you will have to arrive the night before, or if you will
for any reason have to stay overnight, have the at-
torney make reservations for you at an appropriate
facility; determine how best to get there. (If the
courtroom is local, and you have not been there
before, it may be a wise idea to go there a few days
before you are scheduled to appear to familiarize
yourself with the route, parking facilities and court-
room location. In addition, it may be of value for you
to visit the courtroom so you can get a "feel" for the
place before you step inside in an "official" capacity.)
While such details may seem somewhat trivial,
they can become all-important if you have never
testified at trial before. You may be nervous; having
such details written down can make an otherwise
nerve-racking experience far easier. And if you
believe nervousness may be a problem, consider
traveling locally by cab.

Attire
The general rule for attire is to dress in a manner
which connotes the image of an expert witness to
the mind of the jury. Generally speaking, this means
wearing a dark suit, shined shoes and other conser-
vative apparel, and removal of any adornments: no
brightly colored pocket handkerchief, no fraternal
pins, and no flashy jewelry. This helps assure the
jury's principal interest is in what you have to say,
as opposed to what you have on or "Why would an
expert wear something like?" Of course, the image


IV. ISSUES TO RESOLVE BEFORE TRIAL


of an expert will vary, depending on locale. In some
areas it may be far better to rely on casual clothing
rather than traditional "Eastern" garb. Check with
your attorney. If the answer is, "Be comfortable,"
press the attorney for more specificity.

Seating
In some jurisdictions all witnesses, including experts,
are forbidden from the courtroom while opposing
testimony is being given. In others, such rules do not
apply to experts. In these cases, some attorneys
prefer their expert to sit with them, to provide com-
mentary on remarks of witnesses, especially oppos-
ing experts. However, some believe having experts
sit with them is not advisable, because it gives the
appearance that the expert is part of an advocacy
team, rather than being an objective professional.
Determine your lawyer's preferences for your seating
both before and after you give testimony.

Eye Direction
Most attorneys advise an expert to look his ques-
tioner in the eye, but guidance on whom to look at
when responding differs. Some prefer that you keep
looking at the person who asked the question; the
majority seems to agree that you should look at the
jury if there is one or, if not, the judge. If it is a jury
trial, some experts say you should identify those
jurors who seem most interested and respond to
them. In the jury room, during deliberations, they
are the ones who likely will lead the discussion.


Signals and Related Issues
It may be appropriate to develop a set of signals of
some type, permitting you to communicate with
your attorney while you are giving testimony. For
example, if you're growing tired or if an idea sud-
denly occurs to you, you may want your attorney
to call a brief recess (if he can) so you can discuss
it with him. Likewise, during direct examination, you
may discover your attorney has forgotten to ask an
important question. Was this by design or was it
inadvertent?
If signals are not employed, then what do you
do with a bright idea? missing question? Ask your
attorney before trial. In most instances you should
repress brilliant ideas and talk about them later;
assume that any questions omitted were omitted by
design. Speak to your attorney about the "lavatory
ploy," where you request use of the rest room. When
such requests are made late in the morning or after-
noon, the judge may excuse the court and give you
an opportunity to confer with your attorney. Note:
It generally is inadvisable to develop signals for your


I












attorney to give you. It may result in your fixing your
eyes on him, something a judge and/or jury may pick
up. Remember: You are independent and must con-
vey the image of being so.

Pausing before Answering
Despite the potential for negative impact on image,
you may be advised to pause before answering any
question posed by opposition counsel, to give your
attorney time to voice any objection he may have
to the question. Ask your attorney about his prefer-
ence. If he requests you to pause, be sure you work
on your technique during the testimony rehearsal.
Don't under any circumstances be afraid to pause.
Take whatever time is needed to think out your
answer or overcome emotions.

Your Bill
In an attempt to impeach your testimony during
cross-examination, opposing counsel may ask if your
bill has been paid or paid in full. The purpose of
doing this is to suggest that, if your bill has not yet
been paid, perhaps your testimony, will be shaded
to please your client, to assure payment for services
rendered. Accordingly, if any outstanding bills have
not been paid, they should be cleared up before trial,
to help assure this attempt at "gratuitous impeach-
ment" can be foiled.









V. ATTITUDE AND DEMEANOR IN COURT AND AT DEPOSITION


Your attorney will probably give you a number
of "pointers" to help assure proper attitude and de-
meanor when you appear in court or at a deposition.
The following discussion identifies what some of
these may be, with most being applicable both to
depositions and trials. A separate discussion of
depositions also is included.

Do Not Become Modest or Boastful
You have been retained because you are an expert.
All too frequently an expert will downplay his ac-
complishments and, in so doing, will minimize that
which is essential to help maximize credibility. Do
not become modest but, by the same token, do not
exaggerate your accomplishments. For example, do
not overplay the significance of membership in a
given organization when you would have to answer
"yes" to "Isn't it true any engineer who is willing to
pay dues can belong to this group?"

Watch Body Language, Facial Expressions
Be cautious about body language. The judge or jury
will be looking at each witness intently, seeking
signals which help indicate whether or not what is
being said is said with conviction. Body language
can be one of the many "little things that mean a lot."
Also be aware of your facial expressions, which
are a form of body language. For example, do not
scowl at opposing counsel, no matter what the ques-
tion may be. Bear in mind that the judge is or was
a lawyer, and may not take kindly to a negative atti-
tude toward someone who merely is doing his job.
If opposing counsel is being obnoxious, the judge
or jury will see it; no one needs your help. (Obnox-
ious, bullying attorneys generally are a relic of the
past. In any event, your attorney would likely lodge
a successful objection to their tactics.)

Speak Clearly
Depending on the acoustics in the courtroom and
whether or not a microphone is used, it may be
necessary for you to speak somewhat more loudly
than you normally do. In all cases, be certain you
speak clearly, especially to help assure what you say
is properly recorded. (Remember: The case may be
decided on the transcript.) Besides, jurors expect an
expert to speak in clear, forceful tones.

Show Respect to the Judge
By no means act in a flippant manner toward the
judge. Address the judge as "Your Honor." As indi-
cated elsewhere, showing respect to the judge also
shows respect to the court and its proceedings.


Remain Dispassionate, Cordial
At all times remain dispassionate and cordial, no mat-
ter what opposing counsel may say. Remember, he
is just doing his job. The brutal attack he feasibly may
mount against you is nothing more than an act, often
put on simply to get you riled up. No matter what
is said, therefore, react to it objectively.


Do Not Engage in a Battle of Wits
You are not in court engaged in a contest with the
opposing counsel. You are there to render impartial
testimony, to help triers of fact understand matters
they are not equipped to understand without such
assistance. Do not engage in a battle of wits with op-
posing counsel or try to outfox him in any way. On
the one hand, you will appear to be an advocate and
thereby damage your credibility On the other hand,
you are more likely to lose the battle; you will be
playing right into the hands of an effective cross-
examiner.


Answer Only the Question Asked
Being responsive means answering only the ques-
tion asked, which is imperative. It will prevent the
judge from having to instruct you to "Please answer
the question'-which can detract from your image
as a professional-and, perhaps even more impor-
tant, it will prevent you from volunteering informa-
tion to opposing counsel-something opposing
counsel always hopes you will do. For example, if
you are asked, "Did you review Mr. Smith's report,"
the wrong answer would be, "Yes, and we compared
it to several others prepared by other geotechnical
engineers for similar projects in the same area, at
about the same time." The proper answer is, "Yes."


Don't Worry about How You Are Doing or How
the Case Is Going
Experts will sometimes get the feeling the case is not
going well, and will therefore adjust their testimony
in an effort to save things. Don't do it. Your attorney
will tell you how things are going. If he is unhappy,
you will know about it.
In a similar fashion, if you are concerned about
how you have answered questions; if you believe
you have done poorly, do not dwell on your prior
responses, thinking how you can perhaps resurrect
the situation. Concentrate on each question asked.
An expert who is distracted can give entirely wrong
answers, and efforts made to correct the situation
can destroy his credibility.











Put the Cross-Examination in
Proper Perspective
Cross-examination is often far more dramatic than
direct examination. As a result, some experts seem
to forget there was a direct examination at all, thus
entering the cross-examination with a "this is it; do
or die" attitude. Avoid that pitfall. Do not try to score
points on the cross-examiner. It isn't necessary, and
it could be extremely costly. After all, the cross-
examiner has the last word and the ultimate choice
of tools; he's also far more experienced at cross-
examination than you are.

Objections
If your attorney objects to a question posed by the
cross-examiner, do not answer the question until the
judge rules on the objection.

Review Your Own Testimony
In cases where you testify for more than one day, the
transcript of the prior day's testimony may be avail-
able to you before you take the stand again. Always
review such testimony closely. If you see that you
have made a mistake somewhere, advise your at-
torney immediately. Do not be afraid to admit to a
mistake, even if the admission has to come on the
witness stand.

Follow Proper Conduct When Not on the
Stand
A number of do's and don't's should be observed
while you are seated in the courtroom. As examples:
* Do not read a newspaper. Doing so comprises
obvious disrespect, and the judge may advise
you to put it away. When you come to the stand
later, he likely will remember your discourtesy.
Better: Pay attention to the proceedings and take
notes, or appear to be doing so while reviewing
some office work you brought with you.
* Do not whisper to anyone around you. Once
again, the judge may single you out.
* Do not leave and enter the courtroom frequently.
Stay put and wait for recesses to move about.
* If the opposing expert enters, and it happens to
be someone you are friendly with and have not
seen in some while, do not give him any type of
effusive greeting. Doing so enhances his image.
Save such greetings for later, when you are out
of the courtroom.
* If your attorney has requested that you sit with
him, to provide guidance, do not as a general rule
engage in extensive note-passing unless the mat-
ter is urgent. Go over your notes with your at-
torney during a recess, out of earshot of others.


It can be even more important to watch what you
say when you are not on the stand, as during recesses
or in a cafeteria. In many instances members of the
opposition team will be scattered around a court-
room, in hallways and corridors, etc., hoping to pick
up an important piece of information dropped
casually.


Case In Point

In one medical malpractice case, an expert
blew up at the attorney he was working for dur-
ing a recess in the expert's testimony. The ex-
pert was disgusted with the lawyer because of
some of the questions asked, and felt the attor-
ney had required him to give something less
than fully honest answers. The discussion was
overheard, and the expert was asked about it
when he returned to the witness chair to face
cross-examination. The expert lost the case.


Get a Good Night's Sleep
It is absolutely essential to get a good night's sleep
before trial, especially the night before your cross-
examination. Cross-examination can be a draining
experience, and cross-examiners know it. For this
reason they will sometimes save their most damag-
ing questions for late in the day. In fact, some of the
strongest points won during cross-examination fre-
quently are made from 4:00-4:30 PM.


Depositions


Experts usually are not deposed until three or
four months before a trial, because attorneys do not
want to claim a technical consultant is an expert until
they are confident the expert's testimony will sup-
port their client's position. Prior to the time a
technical consultant is named as the expert, his file
may contain both positive and negative information.
The file is considered privileged, however. Once he
is named the expert, only positive information

should remain, because the file at that time is sub-
ject to a subpoena duces tecum.
Conduct during a deposition should be essen-
tially the same as that during a trial, even though the
setting is far more relaxed. In fact, because the set-
ting is more relaxed, composure is all the more im-
portant. Every off-the-cuff remark, joke or jest will
be recorded. Something you say at deposition which











causes the opposing attorney to laugh may be
brought up by the same man during the trial, by
reading it from the deposition transcript with deadly
seriousness.
Likewise, despite the relaxed setting, do not be
relaxed about listening to the questions asked or
about framing your answers. Very often the ques-
tions will be somewhat loose, in the hopes you will
fill in certain blanks and somehow volunteer impor-
tant information. If a question is vague, ask for more
specificity and, in general, be alert to the various
techniques which may be applied to you under
cross-examination at the trial. However, during a
deposition, you can ask to confer with your attorney
at any time. Accordingly, if you are unsure as to how
to answer a question, ask for such a conference,
being sure to ask questions out of earshot of
everyone except those serving with you. Do not
overrely on such conferences, because you will ap-
pear to be unprepared, and give the impression that
you are following your attorney's requests as op-
posed to being independent.








VI. CROSS-EXAMINATION


While a form of cross-examination occurs dur-
ing a deposition, the questions asked are posed
basically to obtain information. Cross-examination
during a trial is performed not only to probe weak
spots, but also to somehow discredit an individual.
In the case of an expert, an opposing attorney may
try to create a slip-up of some kind, or even a trap.
As such, even though the expert may be 100% ac-
curate, and even though the opposing attorney
realizes this, he will somehow try to create a situa-
tion where doubt is laid in the mind of a judge or
jury. It is not an attorney's job to seek justice. It is
his job to be as effective an advocate as possible on
behalf of his client. However, there are things which
a conscientious expert can do to help assure that
justice is served, and many of these "things" relate
to dealing effectively with cross-examination.
The following discussion relates principally to
cross-examination during court trial. Arbitration pro-
ceedings may in some cases proceed along the same
lines, depending on the background of the arbitrator.
In all cases, discuss proper procedures with
your counsel. He may or may not agree with what
follows.

Be Wary of Gratuitous Impeachment
An impeachment occurs when there is a contradic-
tion in a witness' testimony, as between what is said
during the direct examination and what is said dur-
ing cross-examination or at a deposition. There
usually are valid reasons for the changes which lead
to impeachment, and these reasons usually are
covered during redirect examination, during which
a witness' testimony would be rehabilitated.
In the case of experts, some attorneys attempt
to obtain a gratuitous impeachment, whereby they
try to cast doubt on an expert's credibility principally
by taking advantage of the jury's lack of sophistica-
tion in certain areas.
Attempts to obtain gratuitous impeachment are
more the exception than the rule. Generally speak-
ing, opposing counsel recognizes that anything he
does in this regard is likely to be emulated by your
attorney. However, if there is imbalance-if one ex-
pert's credentials are vastly superior to another's, or
if one attorney's capabilities far outweigh the
other's-the likelihood of gratuitous impeachment
is increased.
An attempt to obtain a gratuitous impeachment
may be initiated after you have stated your creden-
tials at the opening of your direct examination. It is
the opposing counsel's right at that time to question
your ability to serve as an expert witness, before the
judge rules on whether or not the court will accept


you as such. Opposing counsel may simply stipulate
you are qualified and ask no questions at all. Alter-
natively, he may question your capabilities or
credibility, to cast doubt on them and/or to help
elevate the credentials of his own expert. One of the
questions he may ask in this regard is, "Have you
ever made a mistake?" An effective answer to this
may be, "Yes, but I've always done my best to cor-
rect it."
In all cases remain calm, polite and profes-
sional. Do not allow yourself to be baited into anger,
sarcasm or any other attitude or emotion which will
affect your image as a professional.
Typical questions which may be asked to chal-
lenge your credentials, either prior to your being
recognized as an expert, or after you have gone
through direct examination, include, "How many
times have you visited the site?" or "How long
were these visits?" (If opposing counsel asks ques-
tions such as these after you have presented your
testimony, it indicates your testimony must have
been fairly solid; he is grasping at straws.)
In the event that certain tests were not done
under your direct supervision or with your direct
participation, opposing counsel may ask something
such as, "Did you participate directly in these
experiments?" You may consider an effective
answer to be, "These were not experiments. They
are routine tests commonly accepted for the purpose
for which they're performed. I did not participate
in them because I specified what was to be done,
selected the individuals who did the work, and I
have every confidence in their ability to perform
routine tests they've performed a thousand times
before." The problem is, you probably would be cut
off before you said everything, with opposing
counsel stating something such as, "Let's call them
tests, then. Did you participate in them di-
rectly? Were you physically present to assure
they were done absolutely properly?" To that
you would be required to give a "yes" or "no." On
redirect, your lawyer would be able to make clear
there really is no need for your direct participation.
(Alternatively, the individual who did perform the
tests could be scheduled to testify.) However, it
would be far more beneficial from your own and
your client's points of view if the original question
could have been answered with a simple "yes." For
this reasonyou shouldparticipate directly, even in
tests which are totally routine.
Another question opposing counsel may ask to
obtain a gratuitous impeachment is, "How much
are you being paid for your testimony?" In
some courts this type of question-the "paid Hes-












sian approach'--cannot be asked; either your lawyer
or the judge will object. But in other courts it is per-
missible, said with the intent of showing you have
been paid a great deal for your services; so much so
that perhaps the jury will be led to believe you would
say anything. Develop a proper response with your
attorney. Some advocate as an effective response,
"I'm not being paid for my testimony. I'm being paid
for my time."
Do not be embarrassed by the fact that your
overall involvement may have resulted in a large fee.
While some jurors may be concerned about its size,
an equal number or more may be impressed by it,
equating size of fee with extent of qualifications.
Nonetheless, it usually is a good idea to assure jurors
understand that your fee encompasses far more than
merely a court appearance. Accordingly, it may be
proper to answer, "Do you mean for appearing here
today, or for all the research, meetings and other ac-
tivities I've done to examine this case?" In any event,
do not try to weasel out of an answer. It will only
indicate you have something to hide, and that will
be damaging.
A question about the extent of your fee may be
followed by another asking if your bills to date have
been paid. As already noted, this would be done to
suggest to the jury that, if all bills have not been paid,
you will do your best to please your attorney to help
assure payment. Accordingly, to foil this attempt at
gratuitous impeachment, all outstanding bills should
be paid prior to trial.
Knowing that you have rehearsed your
testimony with counsel, the opposing lawyer also
may ask, "You knew what you were going to say
before you took the stand, did you not?" An
effective response is, "I've performed extensive
research on this matter and it has led me to the con-
clusions I've just presented so, yes, of course I knew
what I was going to say."
A question similar to the above but far more
sophomoric is, "The attorney who called you
here today told you what to say, did he not?"
An effective response: "He told me to tell the truth.
And if I wasn't permitted to tell the truth I wouldn't
be here." A follow-up question may be, "Have you
ever told a lie?" An effective answer to that is,
"Never under oath."
Another trick question which opposing counsel
may ask is, "Have you discussed this case with
anyone else?" The hoped-for response is "no,"
whereupon opposing counsel will immediately
retort, "Not even for the attorney who called you
here today?" The expert will be caught off guard and
made to look like a fool or liar, and will be so upset


he may fumble with following questions. Accord-
ingly, if that question is asked, an effective response
is, "I discussed it with the attorney who brought me
here today."
In cases where a geotechnical engineer is
known to serve as an expert only to assist
geotechnical engineer defendants, exhibiting
undeniable bias in "project" selection, the oppos-
ing attorney will possibly make an issue of the mat-
ter, attempting to imply the expert would bias his
testimony. If there is an opportunity to give more
than a "yes" or "no" response during cross-
examination, or if necessary during redirect, the
following statement possibly would be valuable: "I
have reached that point in my career where the re-
quests for my services greatly exceed the time I have
available to fulfill them, so I can pick and choose the
projects I want to become personally involved in.
I do not particularly like serving as an expert,
because in most cases the work is not as stimulating
as what I ordinarily do. However, I feel I owe my pro-
fession a service. And whenever a member of my
profession is in my opinion unjustly accused-based
on what I know about the case-I feel it to be an
assault on the profession and not just a single
member of it. Unless that member has an effective
defense, his loss is the loss of the profession, because
it means that many more will be vulnerable to such
attacks. In some instances I am asked to serve as an
expert on behalf of a geotechnical engineer, and I
won't take the assignment because, if I did, I would
be working at odds with his attorney. But if my
assessment indicates the geotechnical engineer has
been unjustly accused, then I will participate in the
case, but only with the understanding that I will not
under any circumstances say anything other than
that which I honestly believe."
Naturally, any such statement must be honest
and, more often than not, will have to be made on
redirect.
If an expert has been retained on a contingen-
cy fee basis, where the amount he receives will be
influenced to any extent by his side's winning or los-
ing, serious bias can be implied, and deservedly so.
Working as an expert on a contingency fee
basis is contrary to ethics and in the best
interests of no one.

"Yes" or "No" Is Usually Best, But Beware
You will note during cross-examination that oppos-
ing counsel seldom asks questions such as "Why?"
or "Could you explain that?" Such questions per-
mit an expert to bring forth additional information
which can do substantial damage to the opposing












counsel's case. If the opportunity presents itself, you
should be prepared to take full advantage of such a
question. Recognize that opposing counsel must
permit you to answer it in full.
A "Why" or "Could you explain that" is most
likely to occur when you respond "yes" or "no" to
a highly complex question drafted by opposing
counsel's expert, and he is expecting something
other than a "yes" or "no." He gets flustered because
he has not done his technical homework well
enough. As you begin your discussion, explaining
the situation and thereby making points for your
client's position, opposing counsel may try to cut
you off. Say, "I'm not finished." The judge will
usually allow you to complete your answer.
As already indicated, it usually is best to keep
your answers as short as possible during cross-
examination, with most attorneys advocating use of
"yes" or "no" to as great an extent as possible. But
beware of a long string of questions all of which
require either a "yes" or "no." Opposing counsel
may be attempting to get you into a rhythm, setting
you up for a question which requires an answer
opposite to the one you have been giving to the past
several questions. Stay alert. If you sense that a
rhythm trap is being prepared, foil it by saying,
"Could you please repeat the question," or "I don't
understand your question."
Recognize that some questions cannot be prop-
erly answered with a simple "yes" or "no." An ex-
ample of this is the compound question, usually
comprising two or more questions in one. Do not
be pressured into responding "yes" or "no." Instead
say, "You've asked two questions. I can respond to
each one 'yes' or 'no,' but I can't give one answer to
both questions." Likewise, be alert to trick ques-
tions for which "yes" or "no" is an inappropriate
answer. You may want to turn to the judge and state,
"I can only respond to that if I qualify my answer,"
If for some reason you still are required to answer
"yes" or "no," your attorney will have made a note
to come back to that question on redirect.
In some instances opposing counsel will ask a
question and demand a "yes" or "no," and either
may be misleading. A good response in such cases
typically is, "yes (or no), but I can explain that." Alter-
natively, you may look at the judge and say, "I will
by happy to respond if the court will allow me to
qualify my answer." If the judge does not permit an
explanation, or if opposing counsel does not ask for
one, your attorney should ask for the explanation on
redirect.
Be alert to the assumptions behind certain
hypothetical questions which also look for a "yes"


or "no." These often begin with, "Will you agree
with me that.. ." followed by a string of cir-
cumstances which lead to conclusions supportive
of opposing counsel's case, and concluding with a
request for a "yes" or "no." In such instances, the
response should be (if true), "I cannot agree with you
because I do not agree with the assumptions you
have made," or "There are far too many unknowns.
I'd have to investigate before I could give any kind
of an answer to your question."


Case In Point

The issue involved in this case was whether
or not construction of an upslope development
had caused excessive run-off. A large holding
basin had been constructed, and-although the
amount of run-off increased substantially-use
of the holding basin resulted in the rate of run-
off actually declining over that which existed
when the land was undeveloped. During the
pretrial conference, the expert emphasized that
the use of the holding basin virtually precluded
the possibility of the flooding which allegedly
occurred being caused by the development.
However, the expert did not stress to the attor-
ney the difference between rate of storm run-
off and volume of storm run-off. (The expert
and the attorney had not developed direct ex-
amination together; no rehearsals of any type
were held.)
At trial, during direct examination, the ex-
pert's attorney asked, "Was there more run-off
after development?" The expert answered
"yes," and his attorney was stunned. The ex-
pert attempted to explain his response but, the
hour being late, the judge wouldn't let him.
Opposing counsel, had he been wise,
would simply have said "No questions" when
it came time for cross-examination. Instead, he
decided to go for the kill, and asked the expert
to elaborate. And the expert did, explaining the
difference between rate and volume, and why
the development could not possibly have
caused the flooding which opposing counsel's
client said had been caused by the develop-
ment.


Ask for Explanations of Unclear Questions
Opposing counsel may ask you a question which is
unclear. Do not make an assumption about the ques-
tion's meaning and respond. Ask the lawyer to repeat












the question, or ask the court reporter to repeat the
question (something you have the right to do at any
time). If the meaning of the question still is unclear,
say you still do not understand it and ask opposing
counsel to rephrase it. Alternatively, ifyou haveyour
counsel 'sprior approval to do so, you may rephrase
the question to one which reinforces a point impor-
tant to your position, saying something such as, "I
take your question to mean, 'Did ., and then
respond.

Beware of "Reasonable Persons"
A similar approach is embodied by "reasonable
person" questions, e.g., "Would you agree that
reasonable persons could differ as to the conclusions
reached based on these facts?" In asking questions
such as these, counsel is trying to establish credibility
for his own witnesses. For example, if you are far
more qualified than the opposing expert, who likely
will hold a different opinion, you elevate the oppos-
ing expert's opinion by agreeing that reasonable per-
sons could disagree. Your attorney may want you to
make opposing counsel define what he means by
"reasonable persons." Alternatively, you might state,
"Do you mean by reasonable persons two unbiased
individuals with equivalent background and exper-
ience?" In essence, most people are reasonable in-
their own minds, but most in fact are biased by how
much they have to win or lose, given the position
they are in. Keep the facts of the case in mind, and
recognize whose responses opposing counsel will
likely compare yours to. Naturally, you should always
answer truthfully.
In some instances your attorney may advise you
to not quibble about defining "reasonable person,"
in that the trier of fact understands what is meant.
Alternatively, he may suggest, "If you mean by
'reasonable persons' two individuals with similar
education, training and experience, both of whom
are completely objective in their evaluations, yes
(or no)."
Very often the "reasonable person" approach
will be taken because opposing counsel recognizes
that your credentials and testimony are sound.
Accordingly, the cross-examination will be
somewhat perfunctory, with the questions posed
designed for agreement. This is basically an attempt
to make the best of a bad situation, by creating the
appearance that opposing counsel is not worried
about your testimony; that you have agreed with
everything he has said. Recognize what opposing
counsel is trying to do. Some experts get somewhat
upset at this point, believing they have not made
their point. They will then try to "get stuff on the


record," by volunteering information they have not
been asked. Answer only what has been asked,
generally saying as little as possible but as much as
necessary. Do not volunteer information.

Disagreeing with Others
Closely aligned to the "reasonable person" question
is, "Have you not frequently differed from
other experts?" Some appropriate answers may be,
"Perhaps, but in the present instance I see no basis
for any difference of opinion," or "Perhaps, but I was
convinced at the time my answer was correct and
I am still convinced of that."
Similar questions will begin by asking if you are
familiar with a certain well-known geotechnical
engineer or a certain text. Usually these are follow-
ed by quotations from them which tend to con-
tradict something you have said. Any number of
dignified statements can be used to extricate yourself
from the "hole" of disagreement with a preeminent
professional. For example: "Dr. X is certainly a highly
regarded geotechnical engineer, but I know of few
statements about geotechnical engineering that he
or any other practitioner would declare are posi-
tively right on a universal basis, without regard to
prevailing local standards of care or conditions, or
client stipulations. In many cases his position as you
quoted it is fully acceptable; but in many cases, as
I am confident even he would admit, it wouldn't be
proper. And this is one of those situations."
If the statement is from a text with which you
are not familiar, and the statement seems "out of
sync" with what you have been taught through
education and experience, it may be appropriate to
say, "It seems to me the author had no practical
experience when he wrote that," or "You can find
authority for almost anything in books that won't
stand up under close examination." Another ap-
proach is to say, "This is in sharp disagreement with
the work which is considered the most authoritative
text in the field .", then citing the name and author
of the text involved.
In some cases the quotation will come from a
book that is out-of-date. If you know that to be the
case, it would be effective to say, "What edition did
you find that in?" or "When was that written?" It
may also be prudent to point out that some books
are being pirated overseas and imported to the
United States. Ask to see a copy of the book in ques-
tion. It in some cases could be an old edition with
a new binder. And bear in mind that even
authoritative authors may have written something
years ago which they have since contradicted. It is
helpful to be familiar with various works to permit












you to say something such as, "That statement was
published in the 1959 edition. He completely revers-
ed his position by the time the 1972 edition was
published."


Case In Point

A noted authority was serving as an expert
witness. Opposing counsel challenged one of
his statements as being in direct contradiction
to something the expert had written. Oppos-
ing counsel then read the statement. The ex-
pert was puzzled and asked to see the book. He
examined it and pronounced it to be a pirated
text, printed overseas and imported (illegally)
into the United States as the real thing. The cor-
rect text had become garbled during the pirat-
ing process. The expert then informed the
court what the correct statement was, and op-
position counsel's case was virtually destroyed.



Do Not Guess; Be Careful about "Assistance"
If you are asked a question you do not know the
answer to, say you do not know the answer but
probably could obtain it through research. Never
guess the answer. Your guess could be wrong and,
if so, your credibility will be seriously impaired. In
fact, some well-known trial attorneys state this may
be the biggest overall weakness of all experts. Too
frequently ego gets in the way and they begin talk-
ing about matters of which they are not truly cer-
tain. When the cross-examiner traps them, their
entire testimony becomes suspect.
If you have forgotten a detail about something,
say so. In such cases, however, opposing counsel
may attempt to "refresh" your memory. In doing so,
of course, he generally will provide information
which favors his position. If something he says in fact
refreshes your memory, respond, but-again-be
circumspect about what he has said, and do not
allow any of his "refreshment" comments stand if
incorrect, e.g, "Thank you, yes. Now I remember.
It wasn't like that at all .. ." If the facts he has related
do not bring complete recall, try, "I'm sorry. I still
don't remember all the facts. It just wouldn't be
proper for me to respond."

Be Careful When Counsel Poses a Series of
Questions
Be cautious when opposing counsel gets involved
in what seems to be a series of questions. Take each


question one at a time. Opposing counsel may be
"up to something." For example, he may be trying
to lead you out of your area of expertise, and as soon
as you start answering questions about which you
are not expert, he will challenge your credentials to
respond, thus attempting to undermine your credi-
bility Alternatively, opposing counsel may seem to
be leading you in a certain direction and, to outfox
him, you set up a roadblock of some kind. This may
be exactly what he wants you to do, because his true
direction is actually the reverse of that in which you
assumed he was heading.

Similar Questions May or May Not Be the Same
Be aware that opposing counsel may ask questions
which are similar to those asked during your deposi-
tion, but which are not identical, in hopes you will
give the same answer you gave during a deposition.
The key is listening intently and taking each ques-
tion one at a time. The "loaded" question could be
preceded by two questions which are identical to
those asked during a deposition.
Opposing counsel may also ask you a question
which is essentially the same as one you respond-
ed to in direct examination. This could be done to
cause you to repeat verbatim what you said earlier,
to make you appear to be long-winded, or to make
your presentation seem "canned." Alternatively,
opposing counsel may look for you to paraphrase
what you said earlier, permitting him to intone, "But
that's not what you said before." The best response
in such instances often is, "I already covered that in
direct examination. Do you want me to paraphrase
my earlier response or repeat it as verbatim as I can?"
If appropriate, you may be able to say, "A complete
answer to that question is on page eight of the
testimony you were given before." Either response
can make opposing counsel seem like he is inatten-
tive or wasting time, with the latter demonstrating
the value of having an organized notebook.

Note: Sometimes opposing counsel will ask the same
question several days after you first answered it,
under direct examination. Do not assume that the
passage of time has weakened recollection and thus
it is necessary to repeat what you said before. What
you said before is in the record; there is no need for
repetition.

Be Honest Even When It's Painful, But ...
If opposing counsel asks a question to which a
truthful response will be damaging to your client,
give a truthful response. Any attempt to skirt the
issue or minimize it will backfire and erode your












credibility. But do not be eager to respond to such
questions. In all cases, whenever a question seems
somewhat problematical for whatever reason, it may
be best to hesitate before responding, to give counsel
an opportunity to object. (As already noted, counsel
may prefer you pause slightly before answering any
question.)

The "One Last Question" Trick
Near what you assume to be the end of your cross-
examination, opposing counsel may start to walk
away and you will relax, believing he is finished. He
then turns quickly and begins, "Oh. One last ques-
tion." Beware. this could be the question, and the
manner in which you handle it could be harmed by
your sudden attitude swing. Do not breathe your
sigh of relief until you have been dismissed.


i









VII. THE ENGAGEMENT


There is no significant professional liability risk
in performing forensic engineering, but there is a
significant risk to reputation and self-esteem. If you
are forced into an embarrassing position, you can
look like a fool. This sometimes happens, and fre-
quently because the attorney who engages you is too
hurried or too careless to do a good job.
As a general rule, do not accept a forensic engi-
neering assignment unless you will be able to per-
form the level of research required to render an effec-
tive opinion, and you are satisfied that the attorney
will devote the time required to assure effective pre-
sentation, as through rehearsals. In all cases, do not
pursue the engagement unless you have a valid con-
tract which helps assure you will receive appropriate
compensation in a timely manner.


The Client


A number of different types of persons may
contact you to obtain forensic engineering services.
These include:


Attorneys
Attorneys may approach you for service, but they
may not be the client. Instead, they may be the indi-
rect client, working directly for a litigant. This is akin
to being selected by a prime design professional,
even though your actual client is the prime design
professional's client.
In some instances the attorney will be retained
by an insurance company, and the insurer normally
pays all costs of defense, including forensic engineer-
ing and expert witness fees.
Insurance Companies
An insurance company may be the direct client,
something which sometimes occurs when it has
been advised of an incident and assumes a claim will
be filed. In those circumstances it wants to obtain
technical consultation, to prepare for the claim
which almost assuredly will follow. In other cases,
the insurer may have already paid on an insured's
claim, and looks to pursue the causal party to recover
its payment by obtaining rights of its insured through
subrogation. In either case, the expert usually
winds up working with an attorney.

Public Entities
Public entities will sometimes wish to engage an
expert to provide high-level expertise relative to mat-


ters such as condemnation proceedings, to testify as
to the best alternative relative to replacing a bridge
or rehabilitating it, etc.

Individuals
Individuals sometimes retain an expert to testify at
public hearings of different types, often to support
or oppose the position of a public entity. In some
cases, however, an individual will seek to pursue a
matter, often against the advice of counsel. Such
clients seldom are prepared to pay the fees which
generally are involved.

Courts
Courts in some jurisdictions have the authority to
retain an expert. Payment in such cases may be fixed
by the court. Payment is made either from the juris-
diction's treasury or is apportioned among the
litigants.


The Initial Call


More often than not you will be called by an
attorney. He will inquire as to your willingness and
availability to serve as an expert. In many cases you
will be told that his client has been wronged, re-
quires effective expert witness assistance to prove
the point, and so on. (Note: If you already have been
engaged by another attorney for the same case, thank
the attorney for the call and immediately decline to
serve. Let the attorney who has engaged you know
about the call.)
A number of issues can be resolved during the
initial telephone call to determine whether or not
it is in the best interests of either party to spend any
more time with one another.

The Dispute
To begin, learn something about the dispute. Who
is the plaintiff and what does he allege? Who is the
defendant and what is his position? Is he
countersuing?

Expertise Required
Given the nature of the dispute, exactly what type
of expertise is the attorney looking for? What posi-
tion does he hope the expert will take? If you do not
have the expertise the attorney needs, let him know.
If you have never before served as an expert, let him
know that, too.













Conflicts of Interest
To determine if there may be any potential conflict
of interest, ask about the composition of "the oppos-
ing team." If you have been retained by the oppos-
ing lawyer before, the attorney now calling should
be so informed. If you have in the past worked for
the opposing attorney's client, that, too, should be
made known. The same applies to others involved
with the opposing attorney's client. An expert must
not only be objective, he must also appear to be
objective. If any type of prior relationship has existed
with any of the principals involved-even peripher-
ally-a conflict may be alleged and the expert's
presentation discredited.

Maturity of Case
Determine the maturity of the case. Is it just getting
under way or, at the other end of the scale, is it just
getting ready to go to trial? If the latter is true, ask
what happened to the prior expert. If the lawyer
indicates there was one, ask for his name. If the
lawyer refuses to give you his name (e.g, "That's
unimportant"), inform him that it is important to you
because you want to speak with him. (Be particularly
wary if the lawyer is reluctant to divulge the name
of the other expert.) If there has been no prior
expert, and the lawyer has delayed this long, it may
indicate he either is careless or operating on a shoe-
string. Generally speaking, this is not the kind of
lawyer to become involved with.

Services Required and Timing
In some instances, an attorney may want you only
to review another expert's calculations. In others, a
wide range of services may be needed. Does the at-
torney know what he needs? Is he open to sugges-
tions? Is he severely limited by budget or time? How
does your availability fit with his schedule? Again,
the more specific you can be, the better you can
determine whether or not you can be of assistance.
(A services checklist is provided in Exhibit 4.)

Fee
If you still are working on agreement, now would
be a good time to identify your fees. It is suggested
that you impose a fee for the initial meeting and the
initial oral report likely to follow. Some attorneys may
object to paying such a fee; they are used to "pick-
ing the brains" of experts at no charge to themselves
or their clients. Most good attorneys will be more
than willing to pay a reasonable fee. How you
approach the matter, of course, is up to you.
However, if you do impose a fee, let the attorney
know what it is. (Most experts charge on an hourly
or per day/per half-day basis for most services, with


special rates being imposed for on-call service and
service during depositions and in court. Some
experts charge a flat fee for the initial meeting and
even go so far as to require payment of that fee
before they will agree to meet.) Let the attorney also
know if you will require him to sign an agreement
and if he must guarantee payment if your client is
the attorney's client.
Conformity with In-House Rules
You may have established certain policies relative to
serving as an expert witness. For example, you may
wish to inform the attorney that your testimony
would be the same no matter who retains you. This
matter probably would have come up earlier in
discussion, as would an in-house policy of defending
only geotechnical engineers, if such a policy exists.
In a similar manner, some engineers will work as
experts only if they are permitted to collaborate with
the opposing experts. If you have any such "go/no
go" policies, let the attorney know about them.

Referral Source
If prospects for engagement still look good, ask the
lawyer where he got your name.

Other Experts
Ask the attorney to name other experts he has used
in the past. If some are of the same discipline, you
may want to ask why he is not using them on this
case. Ask also if he is interviewing other experts of
your discipline. There is nothing wrong in this. It
merely indicates the attorney is attempting to locate
that expert whose initial opinions are most in tune
with the objectives of the attorney's clients. Deter-
mine also if the attorney is retaining or has retained
experts from other disciplines. Ask the attorney if
he minds if you talk with these experts.

Setting Date for Meeting
As a final element of discussion, set a date for a
meeting. Allow enough time to perform some
research into the attorney's background and to issue
a letter (Exhibit 5) with your curriculum vitae (Ex-
hibit 6) and a short-form contract (Exhibit 7).


Research


If the attorney was given your name by an indi-
vidual you know, contact the person to learn more
about the attorney. Principal issues relate to his stand-
ing with his colleagues and his thoroughness of trial
preparation. If the referral source is a peer who has


i













also worked as an expert for the attorney, determine
to what extent the attorney participates in the
expert's work. For example, does he work with the
expert to learn more about technical issues and to
develop and rehearse testimony, or does he wait for
the last minute, perhaps going over testimony the
day before the trial and not bothering to become
technically astute. The same types of questions could
be asked of other experts the attorney has worked
with in the past, as well as any others he has engaged
for the present case. It is appropriate to also ask about
payment.
If the attorney has for some reason dismissed
an expert, by all means contact the individual to
learn more about what happened. It may be more
than a matter of the expert being unable to support
the attorney's point of view.
Other issues which merit inquiry include the
degree of research freedom the attorney permits. Are
his experts relatively free to pursue reasonable lines
of inquiry? Some attorneys impose tight restrictions
in order to keep fees to a minimum. Does the attor-
ney disclose all information to his experts? Some do
not, again, to reduce research time, or simply to
maintain what they feel is better control of the case.
However, less than full disclosure can lead to some
highly negative outcomes.


Case In Point
During cross-examination, an expert was
forced to admit he had not read a number of
depositions. When confronted with testimony
from some of those depositions, he had to ad-
mit further that the information they contained
would possibly alter his opinion. It was ex-
tremely embarrassing for the expert to make
these admissions. He had not read the deposi-
tions because the attorney who retained him
had withheld them.

If something you learn through this research
process makes you feel that you are letting yourself
in for something you'd rather not be involved with,
call the attorney to let him know "something has
come up" and you'll be unable to serve.

Meeting

At the initial meeting, you will want to see
whatever materials have been gathered or developed
to date relative to the case. This material (if any)
should be supplemented by the attorney's recitation
of facts, claims and allegations. He should identify


the legal theory of the opposition and his own.
After reviewing materials and listening to the
lawyer, shift into a devil's advocate mode, if appro-
priate, to flush out the attorney's knowledge of the
technical issues, i.e., ask if he has considered several
alternative scenarios which feasibly would indicate
the rightness of the opposition's opinion. This will
help give the attorney a better idea of what he is in
for.
At this point the attorney will be concerned
about your attitude toward the case, which-of
course-will be determined based on your findings.
It will be up to you to determine the extent of
preliminary research which will be required to ob-
tain an indication in your mind of the strengths and
weaknesses of the attorney's position, as well as the
strengths and weaknesses of the opposition's.


Preliminary Report

The preliminary report will be oral; the attorney
wants to assure that nothing discovered at this
point-when findings could be negative toward his
position-gets into writing.
Your preliminary report may be sufficient to
encourage the lawyer either to seek another expert
or to work for a settlement on the most favorable
terms. Alternatively, it could convince him that there
is a case and that you should be retained as technical
consultant. If the latter situation emerges, it is impor-
tant at this point to identify exactly what services you
should perform. These already have been discussed,
and Exhibit 4 comprises a checklist designed to
make the process easier. Develop your own
checklist.
Developing the formal scope of work will give
you an excellent indication of the attorney's attitude.
If you believe that the work he is permitting is in-
sufficient for you to do the type of work necessary,
tell him so. If he refuses to go beyond a limited scope
of work, and you feel that scope will make you
susceptible to a point of vulnerability attack, you
may simply say that in all good conscience you can-
not take the case any further. Bear in mind that you
are a professional and your professional reputation
is at stake.


Engagement for Additional Services


If after the preliminary report the attorney
decides to retain you for long-term service for the
case, a contract should be developed. Work with













your own attorney in developing such a contract. A
few key elements of this contract are worthy of
mention:



Scope of Services
It will be difficult to pinpoint the scope of services
to begin with. Some will become known only after
the work progresses. Accordingly: it is suggested that
initial services by identified, and that the door be
open to others which maxy be required. In this
respect, the contract should include a list of the ser-
vices you provide, indicating also any special rates
which may apply. For example, most research ser-
vices will be applied at a standard rate. However, the
fees associated with giving a deposition or testimony
in court may be higher, to account for the stress
which may be involved. Conversely, on-call services
may be some fraction of the standard rate. Rates for
subsurface investigation, testing, et at. maxy be the
same as those ordinarily applied, but rates for storage
may be higher, given that certain special require-
ments may be involved when evidence is being
stored. A special charge for administration also mayx
be appropriate.
A method should be developed to permit easy
expansion of the work scope through reference to
the service listing which you provide. Any such
method should require the attorney to notify you in
writing, or you to confirm in writing that a service
orally requested by the attorney will be provided.
It is suggested that, in all cases, each service you pro-
vide be explained, so there is no mistake as to what
a given service title actually includes. This also could
be done in the form of a comprehensive outline.
It also may be beneficial to outline record-
keeping, file management and administrative respon-
sibilities, simply to assure there is no misunderstand-
ing relative to such matters.

Terms and Conditions
The attorney, for obvious reasons, may prefer that
you contract directly with his client. It is suggested
that, in any such case, the attorney be required to
guarantee payment and, if the attorney must pay
because his client is unable to, the attorney would
have 90 days (whereas the client would have 30
days).
Monthly billing is suggested, with a multiplier
to be applied for services which you obtain on behalf
of the client. You may prefer to charge a percentage
for slow pay, or you may prefer to simply not pro-
vide additional services should prompt payment not
be forthcoming.


You feasible may also wish to enter a variety of
special requirements your firm imposes. For exam-
ple, you may wish to indicate that the attorney spe-
cifically permits you to collaborate with the oppos-
ing technical consultant relative to certain specified
matters, or that it is mutually understood you will
not present testimony in the event the attorney does
not provide his time for necessary rehearsals.
Some experts believe it is appropriate to request
a retainer which covers estimated time for the first
month of services, with the bill at the end of the next
month to include another retainer payment, plus
charges for other fees and expenses incurred dur-
ing the prior 30 days.
You may also wish to address the subject of dis-
putes between yourself and the attorney or the attor-
ney's client. It is suggested that you employ a variant
of mediation/arbitration, if at all possible. Through
this approach, e.g..
In the event of a dispute arising from this
agreement. Attorney' and Engineer agree to rely
upon Mrh: Charles A. Brown to effect resolution.
11: Brown shall attempt to mediate the dispute
and, should that be ineffective, he shall hare
authority to impose a binding decision upon
both parties. such decision to also include the
degree to which each party shall be liable for
the plament for Mr1: Bro'n s services.
Other matters which are more or less standard
in geotechnical engineers' contracts should also be
included. ASFE's Contract Reference Guide should
be consulted.


36


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7
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VIII. POST-ENGAGEMENT FOLLOW-UP


If the case proceeds through trial, an expert
should be concerned enough about his client to call
the attorney after the trial is over to learn what the
final verdict was. This is nothing more than common
courtesy. However, the discussion creates an oppor-
tunity for more than common courtesy. For exam-
ple, you should request the attorney to give you
some commentary on your performance. What did
you do that could be improved upon, and what do
you need to do to improve? The attorney may ask
you to likewise critique his performance, and you
should respond in the manner you would like an at-
torney to respond to you.
The matter of disposition of materials also is a
concern. If you are for any reason requested to re-
tain certain items, inform the attorney of the charges
which may be involved. If you are requested to
return various materials, do so. But, if you are given
authority to discard materials, it is suggested that you
write a letter to the attorney confirming his instruc-
tion. Also, some experts advise that some selected
materials possibly could be retained for future
reference.












EXHIBIT 1:
FORMAT FOR EXPERT'S FINAL REPORT*

1.0 COVER PAGE
The cover page (title sheet) should succinctly
identify the nature of the report, e.g.:

FINAL REPORT

of an
Investigation into the Causes of Failure
of the Foundation Constructed for the XYZ Building,
Anytown, Ohio

Submitted by

MNO Geotechnical Engineers, Inc.
123 Main Street
Anytown, Ohio 12345
(678) 910-1112

February 30, 1986
Report No. 98765

2.0 TABLE OF CONTENTS

3.0 SUMMARY OF OPINIONS/CONCLUSIONS
(Optional)
Depending on the preference of the client, and
the length and complexity of the report, this
section would comprise a listing of opinions/
conclusions, drawn from those listed in Section
6.0, but without supporting discussion. If this
section is considered desirable, it may also be
appropriate to employ a footnote or introduc-
tory text along the lines of:
The reader is cautioned that this
summary isprovidedforpurposes of
quick reference only, and is not under
any circumstances a substitute for a
reading of the full report and,
specifically, the statement of opinions
and conclusions (on which this sum-
mary is based) included in Section
6.0 of this report.

4.0 INTRODUCTION
4.1 Identifying number of report
4.2 Date report was prepared
4.3 General description of report and its pur-
pose, e.g., This report has been prepared


as an instrument of service relative to an
investigation conducted my MNO Geotech-
nical Engineers, Inc. of the failure of the
foundation constructed for the XYZ Build-
ing. The investigation was conducted and
this report was prepared at the request of
Smith & Doe, P C., Attorneys-at-Law, in re
XYZ Associates v. PQR Associates, Inc.
4.4 Name, address and affiliation of each per-
son who has rendered an opinion con-
tained in the report.
4.5 Identification of all examinations con-
ducted, indicating precisely what was
examined and the date and location of each
examination.

5.0 PERTINENT FACTS
The report should include all facts which are
pertinent to the opinion rendered, and should
be reported according to 5.1 and 5.2 Note:
When pertinent findings are established
through examination or testing, the persons)
rendering an opinion relative to such findings
will assumedly have supervised, conducted,
participated in or observed the examinations
and tests involved. In any instance where this
assumption is not correct, the report should
identify the name and business address of each
person who supervised or conducted the exam-
inations or tests involved.
5.1 Facts based on the expert's personal obser-
vation of the items in question,
photographs of these items, or items which
are similar to them.
5.2 Other facts based on the expert's personal
observations, as well as other facts or opin-
ions the expert relied on in rendering his
opinion. This section should identify each
piece of equipment used in the examina-
tion, generically, by manufacturer and
model number, and should also relate cali-
bration data. If such information is relative-
ly voluminous, it may be included in an ap-
pendix to the report.

6.0 OPINIONS AND CONCLUSIONS
The report should identify each opinion and
conclusion, and the expert's reasoning for each,
e.g:
1. Differential settlement was caused by
improper compaction in that area


*This format is based upon that suggested in ANSI/ASTM E620-77, "Standard Practice for Reporting Opinions of Technical Experts,"
a document developed for use in cases of product liability.












designed 'Area A," in Figure 1.
A report of the construction monitor (Ap-
pendix E) revealed that those portions of
the foundation indicated by the hatched
lines in Figure 1 settled 3.0 inches some-
time during the evening of...

7.0 SIGNATURES)
If the final report is the work of one individual,
his signature and seal can be affixed at the end
of conclusions. If the report is a joint effort, the
signature and seal of each participating party
can be indicated. If separate opinions relative
to different issues are involved, it may be appro-
priate to identify exactly what it is each profes-
sional is signing off on, and this feasibly could
be done on a separate signature page.

8.0 QUALIFICATIONS
Each expert participating in development of the
report, including those other than the ones who
may have conducted or supervised testing, etc.,
should indicate:
8.1 Education and training which bear upon
his ability to render opinions relative to
matters such as those summarized by the
report, identifying educational institutions
involved and their location (city, state),
dates of attendance, and degrees or honors
received.
8.2 Experience which bears upon the expert's
ability to render service, identifying the ex-
tent of similar projects on which he has
been engaged, the number of persons in
his responsible charge, number of similar
projects involved (firm/organization name,
city, state), dates of employment, and titles
held.
8.3 Professional affiliations, including organiza-
tions in which the expert holds member-
ship, significant service to these organiza-
tions and dates involved, and any honors
bestowed or awards won.
8.4 Other professional activities, including a list
of papers published, lectures delivered, etc.
Note: This section is optional. Your attor-
ney may prefer to eliminate it entirely, or
to list items on a selective basis.
9.0 APPENDICES
Appendices can be used for copies of docu-
ments associated with the report, or investiga-
tions, tables, charts, photos, drawings, test
results and data, and other documents pertinent
to the opinions rendered.













EXHIBIT 2: ATTORNEY'S DEPOSITION
CHECKLIST

1. Full name
2. Date and place of birth
3. Are you or have you ever been known by any
other name?
4. Current home address
5. Current business address
6. Are you now planning to change your residence
or business address?
7. Name of spouse
8. Occupation of spouse
9. What is your educational background?
a. Academic institutions attended and major
subjects of study
b. When were these institutions attended?
c. What degrees did you receive and when?
d. What other courses, seminars, etc., have you
attended? When?
10. Subject matter of thesis
a. If published, by whom? When?
b. If not published, do you have a copy?
11. Articles and books authored
a. Subject matter
b. Published by whom? When?
c. If not published, do you have a copy?
12. Intra- or inter-company reports authored
a. Subject matter?
b. For whom? When?
c. Do you have a copy?
13. Have you ever taught at any school, college or
university? Led a seminar? Taught in any other
capacity?
a. Where? When?
b. Course name and number
c. Subject matter
d. What texts were used?
e. Did you supply a reference bibliography or
recommend one?
f. Do you have any literature, notes or other
materials relating to the course?
14. Relevant nonacademic training and experience
(on-the-job, apprenticeship, in-house courses)?
a. Where? When?
15. Professional societies and organizations
a. Date of joining
b. Member as an individual or representative of
firm?
c. Membership eligibility standards
d. Positions held
e. Attendance of meetings
f. Publications of the organization


16. To what professional or trade journals do you
subscribe or have ready access?
a. Which ones do you read most regularly?
17. Do you have or have ready access to a technical
library?
a. What authoritative publications in the library
do you rely on?
18. Names of books, treatises or other publications
which you recognize as authoritative in your
field
19. Professional societies, trade organizations, etc.,
which you regard as authoritative in your field
20. Are you or have you ever been licensed?
a. Where? When? As what?
21. In what fields do you consider yourself an
expert?
22. Why do you consider yourself an expert in each
of these fields?
23. What is your present business or occupation?
24. What is the title of your present position?
25. Beginning with your first job, and for each job
since then, including your present position:
a. Dates involved
b. Firm or other employing entity and its
location
c. Titles you have held
d. Duties associated with each title.
26. (Pursuit of more information relative to past
duties: number of persons employed, size of of-
fice, number of offices in organization, etc.
Determine where and when witness had duties
which relate to matter under consideration, ex-
tent of experience obtained, where and when
experience was obtained, extent of experience,
location of experience, decision-making capaci-
ty, etc.)
27. Who are some of the major clients of your firm?
28. What percentage of gross annual receipts is each
responsible for?
29. Have you ever been retained to assist in in-
vestigation, analysis or preparation of a matter
relating to a claim, whether or not it went to
court?
a. When? Where?
b. By whom?
c. In regard to what?
d. Did you render a report?
e. Did you testify in court? Identify the cases
and courts
f. Who were the attorneys for all parties in the
case?
30. What knowledge do you have of the facts in this
case?
31. When were you first contacted? By whom?












32. What information was related to you and what
was requested of you?
33. Do you now have or have you ever had any type
of business or personal relationship with any
party involved in litigation, or any party
associated with the project who is not now in-
volved in the litigation?
34. What materials relevant to this case were you
given? contracts, reports, photographs, etc.?
35. Have you read the reports of other experts in
the case?
36. Have you read any depositions, interrogatories,
pleadings or other legal documents pertaining
to the case?
37. Since accepting this assignment, have you con-
ferred with anyone else about it, other than the
attorney who retained you?
a. With whom?
b. When? Where?
c. What was discussed? Why?
d. What guidance or comments did you
receive?
38. Have you visited the site?
a. When? How many times? For how long each
time?
b. Did you take photos or have any taken, in-
cluding instant-developing photos, 35mm,
motion pictures, videotapes, aerial
photography, etc. ?
c. Did you make notes by hand, via tape re-
cording or by any other means?
d. Did you make any sketches, graphs, charts,
etc.?
39. Have you conducted any tests?
a. What type? When? Where?
b. Who supervised testing?
c. What were test results?
40. Have you conducted any additional research
relative to this case?
a. What type? What did it consist of? When?
Where?
b. What were the findings of this additional
research?
41. Do you have any additional research and/or
testing planned?
a. What? When? Where? Why?
42. What is your explanation for the incident
precipitating this dispute?
a. Is this the sole explanation? What other ex-
planations are possible?
43. Upon what did you rely for reaching the con-
clusion you have expressed?
44. To whom have you related your conclusions?
45. Have you rendered any memoranda, letters,


written reports, etc. relative to your findings?
a. To whom? When?
46. Have you produced any graphs, charts, illustra-
tions, models, demonstrations or any other
similar aids relative to the facts of this case, for
use in court or for any other reasons?
a. What?
b. Do you plan to?













EXHIBIT 3: SAMPLE LEGAL EVIDENCE CONTROL FORM


Project No.
Client
Client Address___


Project Name


Contact
Contact Work Phone
Description of Evidence


Special Precautions re Handling or Storage


Evidence Received from
on (date) at (time),
By Witness
Evidence Transferred to
on (date) at (time) by
SWitness
Remarks of


Signed Date
Witness

Disposition
Client Contacted re Disposition on (date)
by
Client Instructions:

Manner in which Client Instructions Were Fulfilled:


Client-Directed Disposition Managed by
Fulfilled on


(date).


No Client Instructions Forthcoming. Disposition Indicated below Performed per Authority of__

Disposition


(date). Witness.












EXHIBIT 4: FORENSIC SERVICES CHECKLIST


Site Review and Photography
Estimated number of trips and costs
Appropriate photography and cost
Development of any diagrams based on sketches
made on site

Interviewing Witnesses
Estimated number of witnesses, time, travel costs
Transcription of recordings, notes or recorded dic-
tation of notes

Identifying Standards of Care
Interviewing fellow professionals
Mail survey
Literature review
Transcription of notes or recorded dictation

Identifying Applicable Codes, Standards,
Regulations, Etc.
Research to identify those involved
Obtaining those involved and review
Transcription of notes or recorded dictation

Identifying Aspects of the Engagement
Review of proposal, contract, promotional and other
materials
Transcription of notes or recorded dictation

Identifying Management Methodologies
Review of technical manual, job descriptions, et al.
Transcription of notes or recorded dictation

Research of Others' Opinions
Obtain and review texts pertinent to the matter at
hand
Review articles written by, texts written by, deposi-
tion transcript of
opposing expert
opposing plaintiff or defendant
client engineer
self
Transcription of notes or recorded dictation

Background Checks
Identify courses taken, professors, texts during
undergraduate and graduate years; major
seminars taken, information imparted, texts;
prior testimony; prevailing relationships of
organization with which involved, etc., and
review to the extent necessary, to derive infor-
mation about


opposing expert
opposing plaintiff or defendant
client engineer
self
Transcription of notes or recorded dictation
Case Research
Contact with ASFE

Claim Evaluation and Other Specialized
Services

Review of Others' Research/Liaison
Review of other experts' findings
Meetings to discuss results, coordinate further
activity

Retention of Additional Experts
Identify additional expertise required
Identify candidate experts
Interview candidate experts, retain one, develop
workscope

Collaboration with the Opposing Expert
Meet to identify common base of factual knowledge
Transcription of notes or recorded dictation

Subsurface Exploration
Development of workscope
Mobilization
Implementation of workscope and supervision
Demobilization
Analysis of results

Testing
Tests to be performed
Supervision of Tests
Analysis of Findings

Reports
Preliminary report
Final report
Progress reports (amount)
Transcription, proofing, etc.

Participation in Pretrial Hearing
Travel and attendance

Identification of Materials Needed

Participation in Interrogatories
Develop questions for opposing expert
Develop questions for opposing plaintiff or defen-
dant engineer
Respond to questions













Preparing for and Participating in Depositions
Development and refinement of questions for
opposing expert
opposing defendant or plaintiff engineer
self
Review and rehearsal with attorney
Review and rehearsal with client engineer
Deposition and travel
Deposition of opposing expert and travel

Development of Graphics, Models and
Demonstrations
Identification of needs
Supervision or management of development

Preparation of Testimony
Development of formal testimony
Development and refinement of direct examination
questions for
self
client engineer
Development of cross-examination questions for
opposing expert
client engineer
self
Rehearsal of questions and answers with attorney
Rehearsal of questions and answers with client
engineer
Development of notebook
Transcription

Trial Preparation

On-Call Service

Storage
Pretrial
Post-trial

General Consultation

Administration












EXHIBIT 5: SAMPLE LETTER TO ATTORNEY IN RESPONSE TO TELEPHONE INQUIRY


Smith & Jones, Attorneys-at-Law
456 Main Street
Anytown, OH 12345
Attention: John Smith

Re: Childs v. Garten

Dear Mr. Smith:

Thank you for calling me to provide technical services for the referenced case. I
believe I have the expertise required to perform the necessary research and related
tasks. I enclose my curriculum vitae in that regard.

It is my understanding your decision as to retaining my services will hinge somewhat
on my perceptions of the issues involved. Toward that end we shall meet to discuss
these issues and, if results of the meeting so warrant, I will perform some "broad
brush" research to render an oral report. It is the policy of my firm that its personnel
be remunerated for the initial meeting as well as for whatever preliminary research
may follow, and that the engagement be formalized through written agreement. I
enclose a partially completed agreement and request that you complete same and
return it to my attention prior to our scheduled meeting on 8 November, at 10 a.m.

I look forward to working with you.



Sincerely,
Doe Geotechnical Engineers, Inc.


John A. Doe, RE.
President



End.












EXHIBIT 6: PROFESSIONAL CURRICULUM VITAE


QUALIFICATIONS

John A. Doe

123 Second Street
Anytown, Ohio 12345


Profession:

Registrations:




Education:


Experience:














Published
Papers:


Society
Memberships:


Awards:


Consulting geotechnical engineer

Ohio, RE. No. 123-456
Pennsylvania, RE. No. 789-012
West Virginia, PE. No. 345-678
Illinois, RE. No. 901-234

B.S. degree (cum laude), 1966, Large University (Middle, Calif.)
M.S. degree civil engineering Magnaa cum laude), Middle University (Large, Ohio)

1979-Present, President, Doe Geotechnical Engineers (456 Elm Street, Medium, Ohio,
12367), a full-service consulting geotechnical engineering firm employing 25
engineers and other technical personnel.

1974-1979, Branch Manager, Nationwide Geotechnical Engineers (Nearby, Ohio, of-
fice), a full-service consulting geotechnical engineering firm with some 40 offices
throughout the United States. The Nearby office under my direction employed
30 engineers and other technical personnel.

1969-1974, Project Engineer, Nationwide Geotechnical Engineers (Nearby, Ohio, office),
in responsible charge of some 200 projects, involving buildings of all types and
public works (bridges, highways, water treatment facilities, etc.)

1966-1969, Staff Engineer, Smith & Jones, Consulting Civil Engineers (Small, Ohio)


"Pile Selection," Annals of Geotechnology, March 1979
"Trench Safety," Journal of Trenching, May 1981
"Site Preparation," Site Review, August 1983


Association of Soil and Foundation Engineers (1983 Chairman, Committee on
Professionalism)

Ohio Consulting Engineers Association (Chairman numerous committees, 1978-82;
Vice President 1983; President 1984)

American Engineers Council (Member, Geotechnical Engineering Committee, 1982-85)

American Society of Civil Engineers

Ohio Society of Civil Engineers

Outstanding Engineering Achievement of 1983 (Ohio Society of Professionals)


Name:

Residence:












EXHIBIT 7: SHORT FORM OF AGREEMENT
FOR PRELIMINARY SERVICES


This agreement is made by and between Doe
Geotechnical Engineers, Inc. (Engineer) and Smith
and Jones, Attorneys-at-Law (Attorney) whereby
Engineer agrees to provide the services of John A.
Doe, PE., to render preliminary technical consulting
services to Attorney on behalf of Attorney's client.
Preliminary services shall comprise Mr. Doe's
meeting with Attorney on 8 November 1986 to
discuss particulars of the case, and-if desired-such
additional services as Engineer and Attorney agree
are appropriate for rendering of an oral report. Such
oral report also shall be considered part of these
preliminary services, and shall be provided within
three weeks of the meeting of 8 November, unless
for reasons beyond Engineer's control such schedule
cannot be met. Engineer shall inform Attorney of any
such delay.
It is estimated that initial services up through
and including presentation of an oral report shall re-
quire no more than 15 hours of Mr. Doe's time. Such
services shall be provided at the rate of $100 per
hour. In the event more than 15 hours of work are
required, Engineer shall so inform Attorney before
devoting any additional time to the case.
Expenses also shall be charged to Attorney, with
such expenses including, but not being limited to,
the cost of transportation (if by auto, at $0.225/mile),
meals and accommodations. All expenses paid by
this firm and billed to Attorney shall be subject to
a 15% charge to cover the cost of accounting and
other handling.
Either party reserves the right to cancel this
agreement upon 24 hours' notice to the other, with
Engineer to have the right to receive payment for all
work performed and expenses incurred up to the
time of cancellation, and for such additional time
and expenses as may be required to bring work to
an orderly conclusion.




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