The difference between fact and opinion is in the eye of the beholder notwithstanding the expertise of the expert, an expertise built upon knowledge and experience. Yet, it will remain up to a juror to make a final determination of whom is right: the defense or the plaintiff expert.
In all litigation there are always some factual issues beyond challenge: the correctional facility’s policies and procedures; the actual staffing of correctional officers at the time and place of an incident; and/or that an assault or a suicide did occur. But the causes, significance, and meaning of many issues frequently and undoubtedly lead to interpretations findings posited by the retained expert. It is this approach to understanding “what” happened and “why” as propounded by opposing experts that can and probably does confound juries.
To develop and convey a sense of credible expertise, the expert must work closely with the attorney not only in helping to articulate a “theory” of the case from both legal and correctional perspectives, but to create a distinguishable and relevant interpretation of the facts that will define and explain what occurred and why whether for the plaintiff of the defendant.
Unfortunately, too many attorneys do not engage their experts early in case development that precludes early and active involvement in case definition as well as the identification and procurement of appropriate and critical documents. It is also important to accept the notion that the expert should be retained in order to supplement the knowledge base of the attorney. That is, for example in corrections, to help the attorney understand policies, procedures, and operations issues with which the attorney may have some familiarity, but not have the depth of understanding or realize the significance that the expert should have.
Further, it is incumbent upon the expert to share with the attorney any standards, and their sources, that may be case applicable insofar as the correctional facility is concerned and the degree to which any audit may indicate compliance or non¬compliance. Even the experienced attorney, i.e., one who has had previous correctional cases, cannot possibly be as knowledgeable as the retained expert. This, of course, should be the “test” when interviewing and deciding on hiring an expert. Beyond knowledge, of course, is the attorney’s perception of the expert’s ability to convey that knowledge in understandable and credible ways.
The attorney-expert relationship should be that of a “team” operating collaboratively in order to prepare for trial. While the expert must rely on the attorney for guidance with regard t legal matters (e.g., inadmissible materials), the attorney must rely on the expert when it comes to interpreting correctional matters. (Of course, this applies to every other field where litigation is involved.)
Among the dangers an expert faces is a consequence of his or her over-confidence a level that bespeaks of arrogance. Here, experience dictates that a jury will tend to disregard the testimony of an expert if there is condescension toward jurors and/or if a “know-it-all” attitude is conveyed during testimony. Another danger is when an expert trips himself or herself up when writing a report that is much too glib, where wordiness supplants facts and where there is a failure not only to document the source of findings but a failure to indicate precisely where a fact or issue was found in the reviewed materials (e.g., Jones Deposition, p. 20; Policy & Procedure 2.507). The inclusion of such pertinent details in a written report unquestionably illustrates the expert’s reportorial abilities and significantly adds to his or her credibility.
The use of an expert with regard to deposition and/or trial testimony will be left to another article. Here, however, it should be noted that an expert is only as good as he or she is prepared to testify, that there is an obvious command of the discovery materials, is aware of factual or interpretive shortcomings, and that he or she has a high comfort level insofar as being able to testify convincingly.
The above, of course, presupposes that the attorney and expert have worked closely and collaboratively in preparing for the expert’s testimony. Additionally, it should be pointed out that an expert needs time to read, assimilate, and understand the discovery materials. An attorney who rushes his or her expert is likely to obtain less than qualified assistance, less than what a good expert can produce.
As a sidebar to the above, the role and responsibility of the corrections expert, whether for the plaintiff or the defense, is to share with the attorney the degree to which he or she believes the case is strong or weak. That is, upon reviewing initial materials, the expert should reach an early assessment whether the defense is defensible or if the plaintiff really has a credible case one that will hold up if the case goes to trial. It is not the expert’s duty to interpret the law, nor should the expert review and cite appellate decisions, those are the responsibility of the attorney. But it is the expert’s duties to share with counsel his or her beliefs about the likelihood of prevailing in court insofar as correctional practices and standards are concerned.
In the final analysis, it is up to the plaintiff’s attorney to decide whether or not to proceed. With regard to the defendant, here the attorney must determine if settlement is in the client’s best interest. If the corrections expert has done his or her job, the decision to proceed or to settle will facilitate appropriate decision-¬making and, hopefully, in a timely manner.
Written by Prison Corrections Expert Witness
Expert Witness No. 136
Click here to view this Expert’s CV