When it comes to litigation, evidence, facts and timelines are generally indisputable. It’s the introduction of the complex human element, such as eyewitnesses, expert witnesses and even jurors, that leaves much to interpretation and provides limited control over what takes place during testimony and the conclusions that are drawn as a result.
People are unpredictable. Whether intentional or not, it is often unexpected human behavior that can take a case way off track or sway a jury in a different direction. Legal teams should always plan for the unexpected and do everything they can to minimize the risks associated with people who are critical to presenting a case.
For instance, consider the recent mistrial of Sutch v. Roxborough Memorial Hospital. There has been a lot of debate about the impressive attorney sanction, close to $1M, imposed on the defense for failing to inform an expert witness about an in limine order not to discuss a certain topic. I’m in no place to determine what actually happened or whether the appropriate decision and penalty were reached. There is, however, an important lesson to be learned from this event.
The defense claimed to have informed the expert witness multiple times, including just before he took the stand, that he must avoid any reference to the fact that the plaintiff was a smoker. The expert, who did in fact mention the smoking topic during testimony, stated under oath that he is certain the issue was never brought up in preparations. Ultimately, it came down to the judge to decide which account was true.
The troubling aspect of this series of events, is that the sanction, and perhaps the mistrial, could have been avoided. It’s a classic case of CYA. As lawyers, we pay attention to every minute detail of a case. We are meticulous when it comes to evidence, testimony and following the guidelines and court ordered requirements of the trial. The financial fate of the firm should never rest on the outcome of a he said/she said judgment call.
When relying on the testimony of a witness, expert or otherwise, he/she cannot be expected to fully understand the letter of the law or complexities around legal proceedings. Legal teams should practice the same attention to detail that they do throughout the entire case preparation, especially if there are court orders that will impact your expert’s involvement. As suggested in the recent ABA Litigation News article, keep a record of the actions you took to make sure they were properly informed and prepped… and have them sign it.
The human brain and human behavior are still topics of mystery and exploration, which makes us all very interesting but also slightly unpredictable. Implementing a process to record important events in witness preparation is a simply executed precaution that, in cases like Sutch v. Roxborough Memorial Hospital could ultimately save your firm millions of dollars. We are only human, after all.
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