Advice on how to NOT look like a hired gun (Even if you have a lot of testimony experience)

From: [Expert Communications] June's Expert News E-Newsletter:

Counsel may try to portray you as a *professional witness.* A professional witness is a witness who testifies frequently and derives a large percentage of his or her income from forensic work.

Counsel is trying to show that such a witness is biased by being consciously or unconsciously hesitant to jeopardize his livelihood by saying something that would hurt the party that retained him. The expert witness that can be portrayed as a *hired gun* due to the frequency with which he or she testifies can quickly be made to lose credibility.

Sample testimony


Q: Doctor, you are an experienced expert witness, are you not?
A: It depends on what you mean by experienced.

Q: You testify quite frequently, don't you?
A: Again, Counselor, it depends on what you mean by frequently.

Q: How many times have you testified in deposition in Massachusetts?
A: 60-80 times.

Q: In addition to depositions, you testified daily when you were a court clinic director.
A: That is correct.
Q: What superior courts have you testified in in Massachusetts?
A: Suffolk, Middlesex, Essex, Hampden, Worcester, I believe, Plymouth, Barnstable, Bristol. I think that's about it.

Q: Would you agree that you are an experienced expert witness?
A: It all depends on how you define experienced.

Lesson: Counsel has scored two major points with this witness. First, the doctor is clearly an experienced expert witness. Secondly, she is not forthcoming with any information. Both points will tend to make the jury or fact finder discredit her testimony. As a practical matter, the doctor would have been better off to admit that she was an experienced expert witness.

- Excerpted from *How To Excel During Depositions: Techniques for Experts That Work* by Steven Babitsky, Esq. and James J. Mangraviti, Jr., Esq. - info see http://expertcommunications.com/products.htm

Hedonics Update: Utah

Inspired by an attorney's inquiry who was interested in the standing of hedonic damages in his state, here is a closer look at hedonics in Utah.

Utah does allow hedonic damages as a part of pain and suffering. The pain and suffering for which damages are recoverable in a personal injury action in Utah include not only physical pain but also mental pain or anguish, that is, the mental reaction to that pain and to the possible consequences of the physical injury. Included in mental pain and suffering is the diminished enjoyment of life, as well as the humiliation and embarrassment resulting from permanent scars and disability.

An article by Mark Glick called "The Law and Economics of Tort Damages" states the following regarding a case in Utah and its implications:

Judd v. Rowley's Cherry Hill Orchards, Inc., 611 P.2d 1216, 1221 (Utah 1980) ("[i]ncluded in mental pain and suffering is the diminished enjoyment of life"). The problem with pain and suffering is that both concepts are closely tied to the injury itself. The level of physical pain that the victim can be expected to experience is closely linked to the nature of the injury. In the eyes of the juror, the answer to the question "how much does it hurt" will likely come from consideration of the injury itself. The concept of suffering is closely connected to the concept of pain, but may include mental suffering as well. Again, as a practical matter, jury assessments of the intensity and duration of suffering closely associate it with the corporeal injury. Moreover, the categories of proof for enjoyment of life and pain and suffering are distinct. For example, compare the case of two artists of equal talent, each of whom loses an arm as a result of negligence. The first artist has an arm surgically severed by mistake at the hospital, while the second has an arm mangled in an auto accident. The loss of enjoyment of life would focus on the activities of life before the injuries, while the pain and suffering analysis focuses on the physical and mental response to the injury itself. When these separate categories are combined inevitably, the second artist is likely to receive the larger award for pain and suffering regardless of the pre-injury evidence.