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Demolishing the Expert Witness
Marshall B. GrossmanBingham McCutchen LLP
and Expert Witness Malpractice
Roadmap
III. Expert Malpractice
II. Demolishing the Opposing Expert
I. Expert Checklist
2
How do you find an expert?
3
September 2002S SFTWTM
Expert TestifiesAbout His
Sept. 13 Report (Which Was Not Produced)
25
September 2002S SFTWTM
September
Experts from Heaven and Hell
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Expert’s Testimony BEFORE Report Produced
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September 2002S SFTWTM
Expert From Heaven and HellExperts from Heaven and Hell
Expert TestifiesAbout His
Sept. 13 Report (Which Was Not Produced)
2625
September 2002S SFTWTM
September
…our opinions had crystallized into a final form by then…
“
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Expert Resumes Testimony About
His Sept. 13 Report
Court Orders Expert to Turn Over Sept. 13
Report; Expert Complies
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Expert’s Testimony AFTER Report Produced
Insert #2 Skorheim.BEFORE.wmv
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Buzz and Woodie
Insert #3 Bucklin.wmv
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Testimony of Financial Expert
Q: How confident are you, sir, of the numbers that you used in arriving at your unjust enrichment analysis?
A: Less confident than I was when I walked in here.
Q: Have you ever before in your entire career come out of a deposition less confident than you are now with respect to the conclusions you reached on this assignment?
A: No.
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Who hired me?
Insert #4 Korvaleva.Multi.wmv
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Shooker v. The Superior Court of Los Angeles County,111 Cal App. 4th 923
We hold in this writ proceeding that the designation of a party as an expert trial witness is not in itself an implied waiver of the party’s attorney-client privilege. If the designation is withdrawn before the party discloses a significant part of a privileged communication (as in this case), or before it is known with reasonable certainty that the party will actually testify as an expert, the privilege is secure; if the party produces privileged documents or testifies as an expert (such as by stating his opinion), the privilege is waived.
“
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Experts and Waiver of the Attorney-Client Privilege
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Expert Malpractice
Attorney’s Potential Risks:
Attorney’s Potential Risks:
Expert’s Potential Liability:
Expert’s Potential Liability:
Theory:Theory: Expert has duty to the party who hired
him/her OR to another party if he/she most likely to suffer damage from expert’s negligence
Expert owes a duty similar to that of other professionals in his/her field of expertise
Case dismissal
Waiver of attorney-client privilege
Demonstrating Causation:
Demonstrating Causation:
Loss of the expert
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General rule Limiting liability
Liability to expert or client
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Closing Argument Demonstration of Opposing Expert
Insert #5 Puppet.wmv
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