The rise of the expert witness
Philip F. Zeidman
The role of an expert witness in franchising disputes has been much in evidence lately. But, since it is a subject with which most franchisors and franchisees are unfamiliar, I decided to detour from my regular column topic and provide some insights for readers.
What is an expert witness? And what determines whether one will appear in a trial?
In simpler times the prevailing notion was that jurors could form their own opinions, based on the facts related by witnesses at a trial, and thus it was inappropriate to have a witness offer an opinion.
In an increasingly complex world, full of specialties and subspecialties, it is now pretty universally recognized that a jury (or a judge or an arbitrator) can benefit from the “opinion” testimony of a witness, based on his or her specialized knowledge, training or experience. Whether a judge will permit the expert to testify will largely hinge on whether the judge determines that the testimony will in fact assist the “trier of fact” in understanding the evidence in determining a fact in issue. Frequently, the result of a trial can be traced quite directly to the effective testimony of such an expert.
The expert is not, strictly speaking, an “advocate” for a particular position in quite the same sense as the attorney who has retained the expert (whose personal view or opinion is irrelevant to the duty to represent the client); indeed, the expert’s credibility can be undermined if he or she appears to be simply a hired gun, parroting the views of one of the parties.
Typically, an expert will be asked to prepare a written opinion on a question posed. Depending upon the course of the dispute, that may be followed by a deposition, with examination and cross-examination. Finally, if the matter has not been settled and if the party seeking the opinion believes it will be helpful, the expert will be called upon to testify at trial.
How can they be helpful in franchising disputes?
There is almost no facet of franchising that does not lend itself to expert witness testimony, and almost any you can identify has probably been the subject of such testimony. They have included the adequacy of a franchisor’s discharge of its obligations; “best practices” in a wide range of franchise relationships; the propriety of conduct by a franchisor or a franchisee; the appropriate response by a franchisor to a franchisee’s conduct or misconduct; the valuation of a franchise.
And the list goes on. What is common to them all is that, if the expert witness has had experience with the issue and can apply that experience to the case at hand in a cogent, balanced and convincing manner, a judge or jury or arbitrator can be guided by a perspective that cannot be provided as effectively solely by opposing advocates.
Who makes the best expert witness?
As a threshold matter, when a party offers an expert witness the judge must be satisfied that he or she is truly an expert. The party’s showing in support of that offer (or “tender”) is typically based upon the putative expert’s “knowledge, skill, experience, training, or education” – that is, an ability beyond that which can be assumed to be common to the factfinder (judge or jury). Heavy emphasis is usually placed upon the extent of the experience. The “best” expert witness is one who can connect his or her experience in a convincing manner to the specific question at issue in the trial, and to do so in a well-written opinion and in testimony that judges – and especially jurors – can readily understand.
In almost every instance in which an expert witness is utilized, the opposing party will also retain one, typically creating dueling opinions which the judge or jury will need to assess. This puts something of a premium on identifying, selecting and retaining the optimal choice as early in the process as possible.
The candidate’s published works can be a two-edged sword: an extensive list can make a favorable impression, but may also offer fodder for opposing counsel to search for inconsistencies.
The same caution applies, of course, when the expert has appeared repeatedly in similar trials; it can lead a jury to discount the testimony as “pre-cooked,” and it can also provide material for cross-examination.
One suggestion: Increasingly, one being considered will have made public appearances that can be viewed on YouTube or elsewhere.
Franchisors or their counsel can thus more readily assess how effectively the proposed expert would perform.
What is it like to serve as an expert witness?
The requests don’t follow any identifiable pattern. Some time ago I appeared as an expert witness in a number of litigated cases over a period of years, touching a wide range of aspects of franchising, relationships and practices. Some were fascinating, especially those requiring appearances in another country. I especially recall one in England, where I testified for the Crown in a criminal fraud case (the only participant, incidentally, not wearing a white wig).
Recently I was retained in two matters within a month of one another: one in a state court with a jury, the other before a three member panel of the American Arbitration Association. The subject matters were completely different, but the requisite skill set was the same.
The issues, like the requests, don’t follow any formula. They have touched on almost every facet of franchising, and the challenge is to be sufficiently familiar with the world of franchising that the subject matter is one with which you are familiar, and that the cross-examination will not take you by surprise.
It has some similarities to the work of a practicing lawyer – among other similar tasks, the reading of materials, the crafting of the document which in some respects is like a legal brief, etc. But in other respects it is quite different, and refreshingly so.
Philip Zeidman is a senior partner in the Washington, D.C., office of DLA Piper and an expert in international franchise law. Reach him at firstname.lastname@example.org.