Federal Rule 703 Basis of Opinion Testimony by Experts

Here are a few quick notes to remember about the the law of presenting an expert’s opinion under Federal Rule of Evidence 703 and similar state evidence rules.

“Federal Rule 703. Bases of Opinion Testimony by Experts. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.”

The Federal Advisory Committee Notes at the time of adoption of this Rule is important. It reads, in part:

Facts or data upon which expert opinions are based may, under the rule, be derived from three possible sources. The first is the firsthand observation of the witness, with opinions based thereon traditionally allowed. A treating physician affords an example. Rheingold, The Basis of Medical Testimony, 15 Vand.L.Rev. 473, 489 (1962). Whether he must first relate his observations is treated in Rule 705. The second source, presentation at the trial, also reflects existing practice. The technique may be the familiar hypothetical question or having the expert attend the trial and hear the testimony establishing the facts. Problems of determining what testimony the expert relied upon, when the latter technique is employed and the testimony is in conflict, may be resolved by resort to Rule 705. The third source contemplated by the rule consists of presentation of data to the expert outside of court and other than by his own perception. In this respect the rule is designed to broaden the basis for expert opinions beyond that current in many jurisdictions and to bring the judicial practice into line with the practice of the experts themselves when not in court. Thus a physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes. Rheingold, supra, at 531; McCormick § 15. A similar provision is California Evidence Code § 801(b). . . . .

In North Dakota, Evidence Rule 703 was proposed by the North Dakota State Bar Procedure Committee, of which Leonard Bucklin was chairman at the time. The Official Comment suggested by the Committee, and adopted by the Court at the adoption of the rule, states, in part:

“Rule 703 is an adoption of Rule 703 of the Federal Rules of Evidence.” Similar statements are found in the rule adoption of many states. Thus the federal decisions on the rule are persuasive to the state court.

In North Dakota, the Official comment notes a previous North Dakota case with approval, pointing out that

“The import of the Court’s decision [in Minot Sand & Gravel v. Hjelle, 231 NW2d 716 (ND 1975) was that the basis for an opinion need not be proved by admissible evidence….”

Note that under Rule 703, the judge decides whether the underlying facts may be used and whether the opinion may be admitted.

In taking depositions, attorneys should note that if you have to use the deposition at trial, you want to have the proper foundation in the record. Especially if you agree to reserve all objections except those that go to the form of the question, you may have problems at trial. If the exert witness is not available at the time of trial, and you are forced to use her deposition, you may find the judge ruling that there is no sufficient foundation in the deposition for the use of the testimony.

Therefore, you should always consider asking some questions of your own expert at the deposition that the other side takes of your expert. You should have the “backup” of a deposition that you can use in an emergency if suddenly your expert is not available at trial time.

When asked to state an opinion regarding a defendant’s negligence, the witness must be provided with the proper legal standard as a predicate. Where the expert witness received the correct legal definition of negligence and gross negligence before expressing his opinions the trial court does not err in admitting the testimony. Pittsburg Corning Corp. v. Walters, 1 SW3rd 759, 777 (Corpus Christ 1999, no pet.).

The Expert Failed the Daubert Test – The Consequences

In today’s courtroom, only an opinion that the judge believes is reliable goes into evidence. The expert in any federal case must provide an opinion that is admissible under the Daubert-Joiner-Kumho gatekeeping test. State courts are adopting similar tests. In the post Daubert-Joiner-Kumho era, litigators have the critical task of presenting reliable expert testimony and precluding unreliable expert testimony of the other side. Attorneys now must expect their retained expert to face a Daubert-style test.

Therefore, in hiring an expert: the first question is: Can this expert pass the Daubert test?

If the expert fails the Daubert test, the consequences can be disastrous in that particular case. Not only are there consequences for the attorney and his/her client; there are consequences for the expert. Not only are there consequences in that particular case, there are consequences that arise even after that particular case ends. This article discusses the problems that will be faced by the attorney and expert, if the expert fails the Daubert test.

For the Attorney – The Consequences

If an attorney-retained expert cannot get his/her opinion into evidence, the attorney faces major consequences:

Loss of the case.
Loss of standing in the legal community, and clients’ disappointment.
Possible grievances and malpractice claims.
The obvious result when the opinion is not admitted is that the case may be lost. Normally, the reason why an expert opinion is sought is because it is necessary to prove the case. Generally, when the expert opinion goes out, there is not sufficient testimony to hold the verdict.

Indeed, in the federal courts, Weisgram v. Marley gives adverse Daubert rulings the potential for death-sentence finality. In Weisgram, the United States Supreme Court upheld the authority of a court of appeals to direct the entry of judgment for a defendant as a matter of law for a defendant which had lost at trial, when plaintiff’s expert testimony was excluded only on appeal. This is an important development, because until Weisgram, when appellate courts excluded expert testimony, the typical action was to reverse and remand. The Supreme Court said that, since Daubert, “parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet.” Continuing, the Supreme Court said something that state courts may echo: it “is implausible to suggest, post Daubert, that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail.” So, if the expert testimony goes out, the case may not be retried — someone can just lose without a second chance.

Loss of the case is usually a financial setback, if not a financial disaster, for both attorney and client. The client’s financial loss is obvious. In addition, when the client is disappointed, the relationship between attorney and client is soured. The attorney loses whatever chance he had to have good rapport with the client, and the client goes away talking ill of the legal systems in general, if not of the attorney in particular. The emotional drain is on both sides of the attorney – client relationship. Attorneys form emotional bonds with their client. No matter how hard the attorney tries to remain objective, a litigator is an advocate with a passion. That passion is not only to win but to win for a client.

For plaintiffs’ attorneys the financial loss is not simply failure to gain a fee. Plaintiffs’ attorneys have to invest large sums out of pocket to try a case that involves expert testimony. Add the investment in attorney time and support staff overhead, and the loss of a case is not a light item in the annual profit and loss statement.

The consequence of a loss of an expert testimony case is not limited to that one case. Insurers and self-insured corporations may say that they do not link the win-loss ratio of an attorney with the likelihood of future retainers, but the fact is they do. We all want to be on the winning side, and corporate defendants can be quick to say it was the attorney, not the corporation’s fault, that the defense lost the case. On the plaintiffs side, like it or not, winning a case is a prerequisite to increased esteem in the legal community. Trial attorneys today, in large measure, depend upon referrals and word of mouth to keep their shop operating. One loss that is reported widely, and that reflects upon the attorney’s choice of an expert, or the attorney’s handling of the expert, can cause a loss of referrals. Certainly, the competition today among trial attorneys for referrals is sufficient so that attorneys who win cases have an edge over attorneys who lose cases.

This leads us to the last of the general consequences which will be faced by the attorney when his/her expert cannot meet the Daubert test: the possibility of the client complaining to a grievance committee or starting a malpractice action. The validity of the malpractice action may depend upon the attorney’s preparation of the case. After a loss the attorney’s preparation of the case will be examined in detail.

Why did the expert fail the Daubert test? Was it because this particular expert has had a succession of court appearances in which the expert has never been able to get their testimony into evidence? If so, the attorney’s failure to inquire may be critical. The retaining attorney, like a cross-examining attorney, who has been in the business 20 years is used to asking the expert a couple of standard basic questions, to wit:

  1. Have you given depositions in court before?
  2. Have you testified in court before?

Today the examining attorney, whether being the retaining attorney or the cross-examining attorney, needs to add a third question to that standard list, to wit:

  1. Have you ever had your opinion excluded from evidence?

The questionable expert, who has had his opinion thrown out ever since the Daubert test has come into being, may be able to answer a “yes” and give very credible references in relation to the first two questions. The third question (which even today is not often asked) is the question which will disclose that the expert was the subject of a successful motion barring his testimony.

Is it professional negligence to fail to ask for the credentials of your own expert before hiring? Probably yes. Is it professional negligence to fail to ask, before hiring the expert, that specific question whether the expert has had his/her opinion excluded? It might be, depending on the circumstances. A check can be made by Internet sources such as MDEX Online’s Daubert Tracker which allows a search for reported cases in which a particular expert is mentioned. Certainly today, both plaintiffs’ attorneys belonging to ATLA, and also defense attorneys belonging to DRI, have databases available to check on the adverse expert (or their own). It can be expected that the adverse attorney has run such a check on your expert. A jury on a malpractice suit, might believe you should not have done less. It is easy to defend a legal malpractice suit on the claim that on the basis of professional judgment even though the proposed expert had been consistently thrown out of court before, you thought this time it would be different. It is not so easy to say that you never checked when a check would have found a consistent pattern of denial of the expert’s opinion into evidence.

Or, did the expert fail the Daubert test because the attorney presenting the expert never asked the questions that would lay the foundation for passing the Daubert challenges. As mentioned above, if an appellate court believes, on the record that exists, that the opinion was not admissible, the opinion may be thrown out without any retrial. There may be no “second chance” to go back and put in the foundation that existed. A wise attorney, therefore, will, on his own initiative, put into evidence those items which will allow the expert’s opinion to pass the gate, even if the adverse party has no cross examination on that point. Do not rely on the fact that the adverse attorney did not do any cross-examination. All that is necessary is that the adverse attorney object to your expert on Daubert grounds and that you have failed to affirmatively ask the right Daubert foundation questions of your expert.

Therefore, not only because of the possible loss of the case, but because of other reasons, the attorney needs to ensure that he/she has an expert that can pass the Daubert test, and also ensure that he/she has asked the questions to put the Daubert foundation into the record.

For the Expert – The Consequences

The expert, likewise, has several problems that arise if his/her opinion is kept out of evidence in a particular case. Those are:

Loss of further employment in that case.
Loss of self-confidence.
Loss of future employment.
Forever thereafter, cross-examination about the loss of that opinion.
In today’s legal world, the sequence of events for an expert with an opinion is:

Deposition of the expert.
Daubert-style motion regarding the expert’s opinion.
If the expert’s opinion passes the Daubert test, testimony in court.
The latter item, testimony in court, normally is the highest revenue-producing area for an expert. Therefore, the loss of further employment in the particular case can be a substantial loss on the time spent on the work-up of the case.

There is another aspect which is not normally discussed in the literature on expert testimony: the expert’s own loss of self-confidence when his opinion is kept out of evidence. There are some experts who have supreme egos and can lose again and again and still forge ahead as though nothing had happened, but most experts are persons not used to the rough and tumble of a trial. Many excellent experts have fragile feelings about court testimony. When their expert opinion is kept out, they retreat into either feeling that (a) the legal system is unjust and stupid, or (b) they themselves are not able to do legal work. The blow to self-confidence can show in later testimony. Juries (not to mention attorneys) are impressed by the outward signs of self-confidence. The outward signs of self-confidence have to come from within if they are to hold up in court. For this psychological reason, then, if for no other, an expert should strive mightily to build his opinion to pass the Daubert test.

It goes without saying that if an expert’s opinion is kept out of evidence, the expert will have less chance of being retained in the future. First of all, the attorney who retained him in this case is not so likely to retain him for a second case. “Fool me once – shame on you; fool me twice – shame on me,” is a proverb that attorneys take to heart. Not only will that particular attorney tend to not retain the expert again, but when called by a fellow attorney asking about the performance of the expert, the attorney is likely to blame the denial of the testimony on the expert, rather than on himself.

Once an expert has had his/her opinion excluded from evidence, the chances go up that it will be excluded another time. There are two reasons for this. First, the adverse attorney in the second case is given emotional support and a ready-made line of questioning that might be used successfully again. Until an expert is successfully attacked, only in the most obvious cases does the adverse attorney really believe that a highly credentialed expert can have an opinion that will be excluded. Once the expert has been successfully attacked, all attorneys think they can duplicate the feat. So, “once excluded, evermore attacked” is a maxim for experts to remember. Second, the judge is more ready to exclude an expert’s opinion if some other judge did it before.

Last, and perhaps most powerfully, once an opinion has been kept out on the Daubert basis, the expert will bear the cross of adverse examination on the witness stand about that point. Unfortunately, most attorneys tend to qualify their expert by, among other things, inquiring if the expert has ever testified in court before. This immediately opens up the cross examiner’s ability to ask if the expert has ever been barred from testimony in court before. Even without that door opened by the proponent, an energetic cross-examiner can devise a plausible, unobjectionable question about past opinion exclusions on the same general subject. Even if the court allows the expert’s testimony in, as passing the Daubert case, the jury which has heard that some other court thought the expert’s opinion was worthwhile will have a suspicion about the character of the expert.

Conclusion

There are consequences when an expert’s opinion does not pass the Daubert tests. The loss of the case is obvious. The other consequences compound the disaster. Today, all attorneys and experts must pay attention to the expert’s ability to form an opinion that will pass the Daubert test. Both attorney and expert must pay that attention before the expert is hired and before the expert gives the opinion. Later attention might be too late!

A Three Point Short Course in Preventing Legal Malpractice

You would think that lawyers would learn! Almost without exception, the most common legal malpractice grievances filed every year against attorneys are allegations of:

Neglect,
Failure to communicate, and
Improper withdrawal or termination of representation.

The solutions to the grievances are not difficult. Common courtesy and attention to the job to be done would prevent most grievances. The American Bar Association‘s Model Rules of Professional Conduct, and state rules govern those common complaints, and if followed, would prevent the legal malpractice and the subsequent complaints. Let’s review, and look at a few practical tips.

1. Neglect: the different worlds in which we think we live.

We all tend to make decisions based on the world in which we think we live C which may not be the world in which the client and other lawyers live. One lawyer’s “reasonable diligence and promptness” is another lawyer’s “sloth, conscious disregard, and untimely responsiveness”. As a result of the different worlds in which we think we live, the ABA’s Model Rule on the subject is wimpy and ineffectual as a teaching device:

A lawyer shall act with reasonable diligence and promptness in representing a client. Client-Lawyer Relationship, Rule 1.3 Diligence

So if your world and mine are different in what we think is “reasonable diligence and promptness”, then what is the test you should use to judge yourself. Hopefully, if you understand a simple test, you will consciously take actions that will prevent charges that you have been “neglectful” (i.e., full of neglect)?

If you had a dread disease, would you consider a medical doctor acting with your speed and client-focus be a doctor treating your dread disease with “reasonable diligence and promptness”? I suggest that the next time you open a file (paper or on the computer) take a moment to consider the world that client lives in, with only one legal matter to think about. To your client, his/her legal matter is a dread disease, to be avoided or cured. You as a patient can understand that the doctor has other patients, and cannot treat or work on you each day C but you want initial choices and treatment to start quickly, and you want assurances that every week or two your dread disease is being treated. Translate that “world” over to you legal business practices. Start initial choices and action quickly, and every couple of weeks either work on the matter or do something to assure your client that he/she has not been forgotten by you. (E.g., something as simple as sending an information copy of documents sent or received can give that assurance that the he/she has not been forgotten.)

If you want to avoid unhappy clients, you have two choices. One, handle the matter as the client expects it to be handled. Two, if you think the client’s world is unrealistic, it is up to you to educate the client on what is going to be the diligence and promptness you are going to render. Either (one) go into the client’s world to judge “diligence and promptness” or (two) educate the client on your world of “diligence and promptness”, and reach agreement that your world’s view of progress is the standard.

Or, here is another idea. Think about the most strict judge in your district. Not good old Judge Jones, who grants extensions of time without anyone asking for them. Think about that Judge Corliss the chief judge assigned to come into your district with the assigned job of getting the trial calendar whittled down. Judge Corliss is the judge who gave you sixty seconds in a motion hearing to state your point and then dismissed your motion as “improvidently filed” because you failed to follow the rule on page margins. That Judge Corliss lives in a different world than you do. There, have you dredged up a mental picture of that judge? Good. Keep your Judge Corliss in mind. Now, when you have finished reading this article, open one of your client files (a paper folder or a computer file). Really, try it: open one of your client files right now. Stop, take a moment, ask yourself if you are acting with the “reasonable diligence and promptness in representing a client” your Judge Corliss would expect. For example, is there a case in which you should tell your client to preserve electronic evidence? What would Judge Corliss think about what you have done to date?

Using the alternative “worlds” suggested above can lend urgency to your vow to “take a look at what we need to do on some of those cases we have not worked on this month”.

2. Failure to communicate: communicate to be a lawyer that clients rush to hire.

The ABA’s Model Rule on communication is not a good teaching tool. By its length the Model Rule has prevented lawyers from educating lawyers on the Rule= s three most critical items. Those three items are all that is needed in 99% of real world practice. The following three sub items should be thoughtfully studied by every lawyer (that’s you), with a few moments= reflection on exemplar cases he/she is presently handling.

(a) A lawyer shall:. . .

keep the client reasonably informed about the status of the matter;
promptly comply with reasonable requests for information; and . . .
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. …. Client-Lawyer Relationship, Rule 1.4 Communication

Notice that those three items are items stressed by J. Harris Morgan and Jay G. Foonberg in their classic How to Draft Bills Clients Rush to Pay. Building the lawyer-client relationship by communication is not only a key in doing the job attorneys are supposed to do, it is also the key to better fees and happier clients.

Why don’t you become one of those lawyers that clients rush to hire? Right now, get out your list of client matters. Is there any client that you have not communicated with in the last 30 days? Either pick up the phone, or write a short email to the client before you leave the office tonight.

3. Withdrawal and termination.

There are certain times when a lawyer is required to withdraw from representing a client. Those rarely occur, but law schools spend an inordinate amount of time teaching about those instances when the lawyer is legally required to withdraw. I will not talk about those here.

Let’s talk about the three classes of withdrawals that most often occur in real-world practice. They are withdrawals because:

Class A. The lawyer has hopelessly neglected the matter,
Class B. The matter is hopeless of success for the client, or
Class C. The lawyer is not being paid, or is not likely to be paid.

Unfortunately, the root cause of the Class A withdrawals should not occur: lawyers should not commit malpractice by neglecting the job entrusted to them. The negligence involved in these withdrawal instances frequently is compounded, because the attorney commonly seeks to disguise his/her own neglect and points to other reasons for withdrawal (in the withdrawal letter or petition).

When a lawyer has neglected the matter, he/she is in a conflict of interest situation with the client.

That last sentence above is important enough to be reread. The neglectful attorney is trying to prevent a malpractice claim against himself, but the client has a right to know:

what the attorney has done that is neglectful, and
that the client has an option to seek alternative representation including advice on whether to bring a malpractice claim against the ineffective attorney.

The client may have a right to require the ineffective attorney to continue, or it might be financially advantageous to the client for the ineffective lawyer to straighten out the mess himself. Nevertheless, the neglectful attorney should consider a full disclosure and falling on his own sword by a withdrawal request letter to the client or a petition to the court for permission to withdraw.

In the class B withdrawals above (success for the client is hopeless, but the client insists on continuing the matter), do not simply say the case is a bad one and therefore you want to get out of it.

Refer to both the ABA’s Model Rule 1.16 Declining Or Terminating Representation, and to your own state rules any time you are even barely thinking about withdrawing from a case. Looking at both the ABA Model Rule and your own state rule will add depth to your analysis of what you can and should do. Usually, you can withdraw only if withdrawal can be accomplished without material adverse effect on the interests of the client, and one of three items exist:

The client has used, or is using the lawyer’s services to commit a crime or fraud. (Consider phrasing your termination of representation as being because it would be a fraud on the court to continue to pursue it when court rules regard the lawyer= s participation and signatures as certifying that the cause is reasonable.)

The client insists upon pursuing an objective that the lawyer considers repugnant or imprudent or with which the lawyer has fundamental disagreement. (Hence, continued representation would be ineffective because of your own mental conflict with the client’s desires.), or
The representation has been rendered unreasonably difficult by the client, (usually because the client fails to communicate with the lawyer or falls to fulfill an obligation to the lawyer regarding the lawyer’s services) and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.

If the withdrawal is because the client is not paying, take note. Many states, in many instances, will not let a lawyer withdraw simply because he/she is not being paid. It is true that some states, e.g., Texas, provide for withdrawal if “The client fails substantially to fulfill an . . . obligation to pay the lawyer’s fee as agreed and the lawyer has given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.” But many states do not regard failure to pay fees as a reason for withdrawal unless contractually agreed upon as a cause for withdrawal. Therefore: whatever state or federal district you are in, as a matter of prudence include a clause in the initial attorney-client fee agreement that specifies an option to withdraw for failure to pay fees or costs. Then the failure to pay contractually becomes “an obligation to the lawyer regarding the lawyer’s services” for which the court can order contractual termination of services.

Every time you terminate representation:

Take steps to the extent reasonable practical to protect a client’s interests;
Always give reasonable notice to the client, allowing time for employment of other counsel,

Always surrender papers and property to which the client is entitled, (even if the law of your state allows you a lien or allows you to keep client= s papers, never keep any papers or property where retention will prejudice the client in the subject matter of the representation).
Always refund any advance payments of fee that has not been earned.