Monday, May 7, 2007
Stephanie Martz, White Collar Crime Project Director at the National Association of Criminal Defense Lawyers (NACDL), guest blogs a six part series on the recent White Collar Crime Track at the NACDL Cincinnati Conference:
Session VI: The Use of Experts in White Collar Cases
Barry Pollack presented Mike Mulligan, the Executive Director of Financial Corporate and Legal Advisors International, and a key consultant and witness in several of the Enron cases (including one in which Pollack won an acquittal for his client in the broadband case) as well as US v.Scrushy; and Stan Murphy, a Managing Director in Navigant Consulting’s Tampa office with a specialty in health care fraud. He also coordinated PwC’s corporate integrity agreement services.
One of the most important issues is picking your discrete, understandable battles. You inevitably have to leave off the table some issues that you know you’re right about at the risk of befuddling the jury.
Both experts emphasized the importance of communicating with the defense attorney on a daily basis about which issues are good issues and where things are heading – especially in a criminal case. Murphy originally examined the cost issue in a recent health care fraud case but ended up not putting that in his disclosures because the issue abated.
In a criminal case, as opposed to a civil case, you need to be less concerned about discovery of the communication process between the defense lawyer and expert. But in cross, could the government stumble onto an area like that? Pollack said that hadn’t happened to him yet – he hasn’t been burnt by broadly sharing work product. Mulligan said, though, that he has a high degree or paranoia about privilege issues, even in the criminal context – no emails, destroy faxes, be careful even about phone conversations.
Do you try to maintain your flexibility in your Rule 16 statement about what your expert will talk about? Pollack said the vaguer the better; the experts don’t all agree. Murphy pointed out the differences between Rule 26 and Rule 16; Rule 26 (F.R. Civ. P.) requires you to put your opinion in the report. Rule16 does not; you do the Daubert motion. But you might in some circumstances want to scare the government off of a particular issue; on the other hand you might want to sucker the government into arguing a strong issue and underplay your good hand.
A question came about mounting a full-court press on the government’s witnesses. A problem is that Daubert is taken much less seriously in the criminal context. The government often tries to sneak its expert testimony in through supposed fact witnesses – this definitely happened in some of the Enron cases. The government will also do this through a pre-trial asset forfeiture hearing (in Scrushy, a 30-day TRO hearing at the end of which the government lost).
How do experts like to prepare? Murphy said the scripts don’t work for him, especially if the testimony will be lengthy. No question you have to practice and rehearse; you have to be prepared with the lawyer to change up depending on how the jury is reacting. BTW, Murphy hates hypotheticals, period. They can be useful on direct in terms of preempting cross but they can paint you into a corner – you’ve gotta be very quick on your feet. Mulligan agrees: Don’t script the direct. But the process can be painful. The lawyer needs help in formulating the question so that the answer isn’t "it depends." In Pollack’s Enron case, many, many hours of prepping testimony also made Mulligan better able to deal with cross – he could accept the prosecutor’s premises and still get to where she was going before she did. Thematic rather than scripted preparation for direct prepared the expert better for cross.
(sm/posted by esp)