In Uncategorized on 03/16/2023 at 15:08

Judge Patrick J (“Scholar Pat”) Urda and Judge Albert G (“Scholar Al”) Lauber were joined by litigators from the private and public sectors (one each) for a causerie on expert witnesses. Practitioners found it interesting.

The SPTO paragraph 4 calls for a motion to file an expert witness’ report. Apparently some practitioners just file the report, others just file a notice of report and file, and some actually comply with the order. Judge Scholar Al said he didn’t mind not having to stamp yet another motion GRANTED, and the matter was left undecided. Taishoff says the SPTO is an Order, not a suggestion, and suggests the motion route. That way the record is clear, and your compliance with the SPTO manifest.

There was lamentation over the asymmetry of access to technical data underlying an expert’s opinion. Especially is this the case where industry standards and practices are at issue. The petitioner, being engaged in the industry for years, may have contacts with access to highly technical data, and employ individuals with decades of experience. IRS has none thereof. While there was a general feeling that the parties should play nice in discovery, I cannot think that the petitioner, with monumental deficiencies and chops on the block, would willingly hand over the goods. Rule 143(g)(3) allows expert testimony as to industry standards without the need for a written report. I guess I can add to my “Stealth” file the Stealth Expert.

Finally, the “hot tub.” This apparently was a thought of the late Judge Laro. The judge would call the experts together out of the presence of the attorneys and attempt to find upon what principles they could agree, to narrow the divide between their respective reporting positions. These concessions could serve to shorten the trial and make it easier to find the correct result. I cannot think too many attorneys would agree to this, and I am sure their clients, who are paying this high-priced talent to win their case and not engage in a philosophical excursus, would not.

But it was an interesting seminar. I look forward to the next, when Judge Ronald L (“Ingenuity”) Buch will take the lead.


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