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Phillip J. Kolczynski |
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| About the Author ... |
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Phillip J. Kolczynski
manages his own law firm in Irvine, California. He has a national practice,
concentrating in aviation, product liability and business litigation in federal
and state courts. Phil teaches evidence, product liability and aviation law at
the Aviation Safety Program, School of Engineering, University Of Southern
California. He chaired the 1990 ABA National Institute on Aviation Litigation in
Washington, D.C., and has spoken nationally at numerous aviation litigation
symposia.
Prior to moving to California in 1983, he was a trial attorney in the
Aviation Unit, U.S. Department of Justice, Washington, D.C., and the Litigation
Division, Office of the Chief Counsel, Federal Aviation Administration,
Washington, D.C. Phil graduated from Case Western Reserve School of Law,
Cleveland, Ohio, in December, 1976, and attended college at Marquette
University, Milwaukee, Wisconsin, in 1969 where he held a Navy ROTC Full
Scholarship. Before entering law school, he was a Marine Corps Captain and F-4
Phantom Pilot. He is a Commercial Pilot with instrument and multiengine
ratings.
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| AviationLaw@AVweb.com |
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| AviationLawCorp.com |
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There are two types of aviation businesses:
those who have been involved in litigation, and those who will. Air crashes and
business disputes often result in the parties hiring lawyers and slugging it out
in court. Due to the technical nature of the aviation industry, lawyers rely
heavily on expert witnesses to explain the technical side of aviation to judges
and juries.
If you're involved in aviation — and especially if you're an aviation
professional — you might someday find yourself in the role of a consultant to
attorney, insurance company, the FAA or the NTSB. You might even wind up as a
"testifying expert witness" rendering opinions on causation or other issues. Or
you might find yourself testifying as fact witnesses because you saw an accident
or incident occur, or have specific knowledge about issues that are in dispute.
This article will explain the role of a technical witness and aviation expert
in contemporary litigation, and provide some tips and recommendations for those
who venture from the security of the cockpit into the no man's land of the
courtroom.
Assuming you're not a "party" to the lawsuit (i.e., the one being sued or the
one doing the suing), your role as an expert would probably be one of these
three roles:
- Retained Testifying Expert
- Confidential Consultant
- Fact Witness.
As you will learn, sometimes these roles overlap.
An expert who has been retained by a law firm to testify is the true
"hired gun" you have heard about. If the lawsuit is one arising from an
accident, this person (usually recognized for his expertise) is hired to analyze
the crash and provide opinions on the cause of the accident and whether or not
airmen breached their standard of care. The hallmark of a testifying expert
witness is that he or she is permitted by the court to render opinions based on
analysis. All other witnesses in a trial are usually only permitted to testify
as to facts or provide opinions based on what they personally preceived.
A testifying expert witness is paid on an hourly basis for his or her
research, analysis and appearance in deposition and at trial. It is unethical to
pay a retained expert witness on a contingency fee basis! In other words, the
expert's fee cannot be contingent on whether the attorney who hires him wins or
loses the case.
Some testifying experts have full time jobs as aviation professionals and
merely testify on the side. Others (often retired) make a living as forensic
experts. The great majority of the experts with whom I have worked do not
consult and testify primarily for the money. They work as experts because they
find it very stimulating to apply years of experience to the challenge of
analyzing the cause of an accident. Many experts actually enjoy defending their
opinions on the witness stand against stiff cross-examination by attorneys.
Many experts involved in aviation litigation never testify in
court. Technically qualified aviation professionals are often retained
by attorneys, insurance companies, governmental agencies in order to
investigate, analyze and perform tests regarding the issues involved. In order
for a consultant's identity and work product to be confidential, the consultant
must be working for an attorney in anticipation of litigation. Thus, it is
critical that a party who expects to be involved in litigation retain an
attorney to hire the consultant in order to cloak the consultant with
confidentiality (at least in most states).
The right to preserve the confidentiality of the work of the confidential
consultant exists under the Attorney Work Product Doctrine. Thus, if the
attorney is supervising the analysis of a case in preparation for litigation,
the courts of most states and the Federal courts have traditionally protected
the work product of the attorney as well as the investigators and consulting
experts he has hired to assist him with that analysis. This Attorney Work
Product Protection should be distinguished from the "Attorney-Client Privilege"
which is the protection afforded to the confidential communications between the
client and the attorney, his staff, investigators, consultants, etc.
If the attorney subsequently decides that a confidential consultant should
step forward and testify, the consultant will have to be "identified" or
"designated" as a testifying expert. Once identified or designated, most of the
work the consultant has done will become fully "discoverable" by the opposing
side. It is good practice for attorneys to initially retain a prospective expert
as a "consultant." If the consultant turns out to have opinions beneficial to
the client and if the attorney concludes the consultant would make a good
testifying expert, then a decision can be made to publicly identify that
individual as the testifying expert for the client. On the other hand, if the
consultant holds opinions that could damage the client's case or would otherwise
make a poor testifying expert, the attorney can keep the consultant's identity
and work confidential.
In complex cases where there is adequate budget, skillful aviation attorneys
will often hire one consultant to work behind the scenes to secretly analyze the
evidence, and another expert who is groomed to be a testifying witness at
deposition and trial. This approach allows the confidential consultant to
perform experiments, accident reconstruction, testing and other investigations
which do not have to be disclosed to the other side if they turn out
unfavorably. Remember, however, that once a consultant is designated as a
testifying expert, most of what he has done becomes discoverable.
It is important that the lawyer hire the expert and determine what work
the expert will perform. The client should not hire the expert, they should
let the attorney retain the expert, in order to cloak the expert with Attorney
Work Product Protection. Insurance companies are sometimes tempted to hire
experts directly after accidents. This is a dangerous practice and may result in
full discovery of everything the insurance company and expert has done to
analyze the case. The only sure way to enjoy work product protection is to
employ outside counsel to hire the expert in anticipation of litigation.
Anyone with knowledge of facts pertinent to a case being litigated may
end up testifying in deposition or trial as a fact witnessÖwhether they want to
or not. You may be required (by subpoena, notice of deposition or court
order) to appear and give testimony regarding factual information you know, as
long as it is relevant to the issues in the case. You may not keep what you know
confidential unless it is a trade secret or covered by some special evidentiary
privilege.
If you are a fact witness who is also an aviation professional or experienced
aviator, you might be qualified as an expert witnesses once called to the stand
to testify — and thereby asked to testify about your opinions rather than
simply on what you know factually — even though you have not been formally
retained by either side. Courts are liberal in this regard and will allow one
party or the other to qualify such fact witnesses as experts if they have the
appropriate expertise.
Who can qualify as an "expert" in court? The rules for this procedure
vary from state to state, but Federal Courts allow any witness to be qualified
as an expert if that witness possesses "knowledge, skill, experience, training
or education which may aid the trier of fact" (the jury, if it's a jury trial)
to understand the technical issues involved. Thus, anyone who has developed a
certain degree of expertise in aviation may find themselves subpoenaed to
testify in litigation. Examples include, investigators, flight instructors,
safety managers, supervisors, owners, mechanics, engineers, etc.
If you testify as an expert witness, what you are paid depends upon
whether or not you have been retained by one of the attorneys. Technical
witnesses who are not retained as experts are normally paid only a subpoena fee
for their appearance and testimony. However, when lawyers serve a subpoena on a
technically knowledgeable person, and require that the expert formulate new
opinions or analyze data in a deposition or a trial, the expert should be paid
an hourly fee for his analytical expert time.
The laws of the different states vary with regard to whether or not a
subpoenaed technical witness can insist upon payment for their
professional time. As a matter of fairness, the lawyer should offer to pay if
they are asking experts to conduct fresh analysis and form new opinions, because
the attorney is seeking more than the factual knowledge of the technical
witness. Most attorneys recognize the professional stature of such individuals
and compensate them accordingly. A few, however, abuse the system and try to use
technical witnesses and makeshift experts by merely serving them with a
subpoena. In some reported cases, the witnesses have actually had to hire a
lawyer and seek a protective order from the court in order to obtain payment for
their time.
Retained consultants and experts are hired by attorneys on an hourly
basis. Their fee is based on their level of expertise and their experience
testifying. Normally, the lawyer will pay the expert directly, unless it is
mutually agreed that the client will pay the expert.
Unfortunately, disputes arise between experts and lawyers over the payment of
fees. Such disputes can usually be avoided if the attorney and the expert put
their agreement in writing, and spell out the fee that is to be paid for the
different functions the expert will perform. There should be a clear agreement
on research, testing, analysis, consulting, testifying at deposition, trial
testimony, travel and other costs. Experts should confirm verbally with the
retaining attorney whether expense estimates will be needed, travel logs
prepared and whether the expert has the authority to use other consultants or
subcontractors. The attorney should also explain whether or not the expert has
the authority to conduct interviews, perform testing or create demonstrative
evidence. Experts should be careful to submit bills to the attorney without
disclosing work product in their description of work performed in case these
documents become discoverable.
If you are a technical fact witness, your ethical obligations are
simple: tell the truth! There are almost no enforceable rules to
ensure that experts tell the truth. The ethical "bottom line" for experts is the
oath they take when they give testimony in deposition or at trial. The oath is
the one enforceable guideline that must be followed when rendering opinions.
If you are a retained testifying expert, you have additional
obligations. Before accepting employment, you should ensure that no conflict
of interest exists between the confidences you have held for prior clients and
the new client the attorney is asking you to work for.
Many professions have ethical guidelines for their professionals. Some
organizations' guidelines include broad platitudes about "honesty" and
"truthfulness." Most of these guidelines are not enforceable in court, in that
they are not laws, they are rules of membership in professional organizations.
The organization may ostracize a member who does not follow those rules, but it
would be rare for a court to hold an expert liable, for failing to comply with a
professional organization's guidelines regarding opinions given in litigation.
Attorneys are accountable under strict Canons of Ethics and State
Professional Codes. As a practical matter, because a retained expert or
confidential consultant works for the attorney on a case, the expert must of
necessity abide by the attorney's ethical guidelines when assisting the attorney
on behalf of a client. It is incumbent on the attorney to explain these ethical
requirements to the expert. Attorney ethical constraints which indirectly
apply to experts, include requirements such as preserving the client's
confidences, avoiding conflicts of interest, protecting the client's reputation
and avoiding even the appearance of impropriety when representing the client.
If an attorney or an expert fails to abide by Canons of Ethics and State
Professional Codes, the attorney and the expert can be removed from the case.
The attorney may be subject to even greater penalties than the expert. Experts
must realize, however, that if word gets out that the expert's misconduct caused
the attorney to be sanctioned, other attorneys will be reluctant to hire such an
expert for future cases.
The attorney-expert team is critical to successfully litigating aviation
cases involving complex technical ramifications. There is always potential
tension in this relationship. Experts must be objective, while attorneys are
subjective. While it is a lawyer's ethical obligation to advocate their client's
case and zealously argue the evidence in favor of the client, it is the expert's
job to zealously search for facts and the truth.
The attorney hires a consultant because he is expected to have in depth
knowledge on a particular technical subject or in a specific industry. One of
the most important things the consultant can do is to explain what must be done
immediately in order to preserve evidence. The attorney should know the rules of
evidence, but the consultant needs to alert him as to what's out there and how
to get it. A consultant can be extremely valuable to any attorney by identifying
key reference books, treatises, manuals, regulations, directives, etc., that set
standards in the industry. Similarly, the consultant should identify potential
witnesses and demonstrative evidence.
Some cases justify only one aviation expert. Other cases require multiple
experts, with each having specific areas of responsibility. Find out ahead of
time whether you are testifying on causation, breach of the standard of care, or
some specific issue. Have the attorney send you the investigative reports,
statements and data which he or she has already collected in the case. After you
have a chance to review the initial file, outline the necessary investigative
steps and obtain the attorney approval to implement them.
Make sure to point out all favorable and unfavorable facts in the client's
case. Don't mislead the attorney as to the strength of the case. Recognize that
if the attorney has little or no aviation expertise, he or she is extremely
dependent upon your opinions. It is important to explain whether reasonable
minds may differ with regard to some of your opinions. The attorney needs to
understand if there is another view point or another analysis. Play "devil's
advocate" with your own analysis. Identify the weak points and reveal them to
the attorney. Ask if you can do further work in these areas.
Take it upon yourself to be prepared. One of the most frequent complaints
from experts about attorneys is that the attorneys do not give them sufficient
advance notice of deadlines. Find out the "discovery cut off" in the case.
Expert depositions usually take place at the end of the discovery process.
One advantage to being an expert consultant is that you have a lot of
autonomy in doing your work; however, such independence can easily be abused.
Experts that present attorneys with large bills for unapproved research and
analysis will find themselves with a reputation as being too expensive. Offer
the attorney an overview of the various testing methods available to analyze the
evidence but explain how much it will cost to implement each (e.g., flight
testing, metallurgical, scanning electron microscopic analysis, radar raw data
plotting, computer animation, etc.)
Naturally, you will need the documents, photographs and other evidence which
provide the basis for any opinions you will render as an expert witness. But
writing down too much may prove more of a liability than an asset. It is
important to understand that if you are identified or designated as a testifying
expert in litigation, almost all of your analysis, notes, conversations,
reports, correspondence, research, photos, etc., may become discoverable by the
other side. Exactly what is discoverable, depends on the rules of procedure and
evidence in the jurisdiction in which you are working. Each expert should check
with the attorney who hires him as to the procedures for record keeping in the
consulting or expert assignment.
Recognize that when you take notes, the other side is likely to obtain
discovery of your notes. Consider whether you need to take prepare "laundry
lists" or "to do" lists. Refrain from writing editorial comments on depositions
and other documents. Imagine the delight of an opposing counsel who finds
"problem area," "smoking gun," or "point out problem to attorney" next to some
fact unfavorable to the client! You have an ethical obligation to point out all
of the facts to your attorney, pro and con, but do you don't need to create a
road map for the opposing lawyer.
Appreciate that if you include materials beyond those which are necessary to
support your opinions, the results will be a longer deposition, greater cost,
and a broader scope of inquisition. Most procedural rules require that the
opposing party pay for the time in which the expert is being deposed. However,
the preparatory time, wherein your attorney has to go over all of the notes with
you, is usually billed to the client.
It is generally a good practice not to prepare a report until the attorney
instructs you to do so. Many state court trial attorneys prefer no written
reports from their experts. They wish to avoid pinning an expert down until all
of the evidence is collected. Federal courts now require written reports. Check
with your attorney as to the scope and content for any report requested.
Reports can be very helpful for serious settlement conferences, mediation,
arbitration and mini-trials. Sometimes, attorneys have their experts prepare
Declarations Under Penalty of Perjury to use in Summary Judgment Motions. Some
insurance companies and clients are not satisfied that the expert is doing a
good job unless the expert prepares a report, they may even want the report in
order to justify payment of fees. Some attorneys want a report from the expert
because they cannot keep track of the technical detail involved.
Experts are usually involved in the creation of demonstrative evidence.
Demonstrative evidence can be as sophisticated as a computer animated recreation
of the accident with real time tapes and flight data or merely a simple collage
of photographs. Demonstrative evidence is very useful in explaining aviation
concepts and how the crash occurred. It is essential that the expert coordinate
carefully with the attorney as to the timing and make up of any demonstrative
evidence to be created. The rule I use in coordinating the creation of
demonstrative evidence is that it must not only educate the jury, but also,
visually convey an impression of the facts that is favorable to my client's
case. Demonstrative evidence should never be of equal or greater value to the
opposing side.
First of all, recognize that most experts never testify at trial, simply
because most cases are settled before trial. Most experts testify in
deposition. It has been my experience that in complicated, high-stakes
litigation, the cases usually do not settle until after the expert's deposition
has been taken. The expert's deposition is very important in assessing exposure.
Moreover, because the written discovery procedures available to litigators in
civil litigation are of limited value, one does not usually obtain in depth
disclosure of the other side's theories and evidence until the attorney takes
the opposing experts' depositions. Thus, the expert deposition is an important
"show and tell" session. The expert and the attorney need to prepare thoroughly
for the event. A common mistake made by attorneys is their failure to integrate
their experts' work with the rest of the case before the expert's deposition.
I like an expert who comes to a deposition with a one page summary of his
opinions (if he needs them in writing) and a list of all the depositions and
documents he reviewed and relied on to form his or her opinion. What if
supporting documents have been collected, independent of the formal discovery
process, such that opposing counsel has not already received them? They should
be turned over to your attorney in preparation for the deposition, and disclosed
to the opposition in accordance with the rules of your jurisdiction.
Recognize that under some state's rules, correspondence to the attorney,
travel logs, bills, invoices, diagrams and almost everything created by the
expert may become discoverable. If you do not want it discovered, don't create
it. Anticipate that you will probably be required to verbally divulge the
information.
The subject of how to give an expert deposition is worthy of an entirely
separate article; however, a good lesson for experts is to understand what the
opposing counsel is trying to achieve in the deposition. Litigation attorneys
routinely try to find out all the expert's opinions and the entire basis for the
opinions. Lawyers usually want to find out everything the expert has done to
arrive at his opinion and who he's done it with.
The opposing lawyer's main objective is to pin that expert down to certain
opinions, so that the expert cannot modify the opinions at trial.
Frequently, experts and their lawyers learn new information after the
deposition. After deposition, they attempt to redesign the opinions so as to be
more persuasive to the jury. If counsel has pinned the expert down sufficiently
in deposition, the expert will not have latitude to testify differently at trial
without embarrassment. Therefore, as an expert, you should avoid being pinned
down.
The expert should always explain that his or her opinions are open to
modification if additional important information is acquired. The expert should
explain that while he or she is prepared to render firm opinions in the
deposition, the opinions are never final until the expert takes the witness
stand and factors in any information that has come to light in the trial.
During an expert's deposition, the interrogating attorney will attempt to
show that the experts failed to research certain points. The obvious antidote to
this problem is thoroughness. Another technique that attorneys use to limit an
expert is to get the expert to concede that he is not a expert in certain
peripheral areas, such as asking a pilot whether he is a weather expert. Expert
pilots are well schooled in aviation weather, but they are usually not
meteorologists. One way to handle this problem is for the expert to admit that
he is not a meteorologist, but to explain his qualification and analysis to
render opinions on the aviation weather issues "in this specific case." As long
as the expert is honest, is thoroughly prepared and understands the issues of
the litigation, he should be able to give a good deposition.
Assume that you are truly a expert, convey a credible impression, and know
the case thoroughly. How can you be more persuasive than a comparably equipped
and prepared expert on the other side?
Juries are persuaded by experts who sound like they know what are talking
about, but are also able to explain their opinions in terms understandable to a
layman. Experts should avoid using jargon, acronyms, abbreviations, tradenames
and other shortcut linguistic tools which may sound impressive but which are
really confusing to the jurors. The expert should anticipate that the juror is
like an intelligent twelve-year-old, quite capable of learning subject matter,
but unsophisticated in the particular industry or area of technology involved.
| If you think you have what it takes to be a good expert, try this
exercise: Pretend you are testifying in an air crash accident involving an
airplane which stalled and crashed while turning VFR from "downwind" to
"base." Explain what a "stall" is or the aerodynamics of "adverse yaw" to
a smart teenager who doesn't know a "biplane from a bicycle."
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An expert should assume the role of a teacher and use any opportunity to get
up and explain their opinions by means of blackboards, easels, etc. An expert
should be adept at using engineering manuals, the AIM, Advisory Circulars, FARs,
NTSB reports and other such "official" documents to support their opinions.
Convincing experts are those who have personally evaluated all important
evidence. The pilot expert who has recently flown the model of aircraft involved
in the accident is more persuasive than the one that merely studied the Flight
Manual. The reconstruction expert who has personally examined the debris is
better than the one who studied the photos. The product liability expert has
tested the failed part can be more persuasive than the one who merely studied
all the blueprints which were used in its design.
Experts are permitted to corroborate their opinions with the statements and
opinions of others. The expert should be able to rely on anything that a typical
expert in the field "reasonably relies on" in performing such an analysis. If
you rely on the work of others, personally check their work to insure its
accuracy. Take full advantage of photographs, audiotapes, computer analysis and
videotape to positively reinforce the basis for you opinions. If you are going
to use calculations, make them simple and easily understandable. If you are
going to review to authoritative treatises and journal articles, highlight and
blow up the key phrases and make sure that there is nothing else in the very
same document which will contradict your opinion. It is always nice to be able
to point to governmental regulations, directives, ordinances, etc., if they are
consistent with your opinions.
Skillful experts are able to point out what key facts are consistent with
their opinions and inconsistent with the opponent's opinions. Experienced
experts also select analogies, metaphors, quotations and examples.
Candor persuades. The expert who is most persuasive to a jury is the
one who is knowledgeable, prepared and honest. The best way to accomplish this
is to develop a confident, forthright, down-to-earth and objective demeanor.
Just remember, it is the attorney's job to argue the facts and to persuade. The
expert's job is to analyze and to explain the facts.
Here are some mistakes I have personally seen aviation experts make in actual
cases:
- Failing to master the facts of the case in which you are employed.
- Failing to understand the opposing lawyer's and opposing expert's analysis
of the case.
- Misunderstanding how your opinion fits in to your client or attorney
theory of the case.
- Becoming a advocate instead of an unbiased expert.
- Offering opinions outside your area of expertise.
- Relying on data or documents not pertinent to the date on which the
accident occurred ( for example, attempting to apply current standards to an
accident which occurred four years ago).
- Allowing your ego to intrude in your deposition or trial testimony.
- Losing your temper on the witness stand, unless it is intentional and
restrained.
- Damaging your credibility by quibbling over peripheral issues.
- Failing to reveal to your attorney, prior testimony, publications,
affiliation or failures, which may be used by opposing counsel to embarrass
you.
- Answering hypothetical questions without forcing the cross-examiner to
supply all of the variables or assumptions.
- Mishandling custody of tangible evidence.
- Billing for work not authorized by the attorney or client and indulging in
analysis which satisfies intellectual curiosity but which is not necessary for
the case.
- Losing sight of the fact that juries pay a lot of attention to your choice
of words on important or sensitive issues.
- Answering questions in deposition or trial on cross-examination or direct
examination, if you do not understand the question.
NOTE: The issues and recommendations discussed in this article are
based on hypothetical situations and do not constitute legal advice. My
objective is to alert you to some common issues so that you can avoid or
minimize legal trouble. Anyone with an aviation law problem should be guided
by the advice of his or her lawyer, under applicable federal and state laws,
after a full and confidential disclosure of all relevant facts.
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