1. PRESIDENT'S MESSAG E by GeotfTrachtenberg
An lndian auto-rickshaw driver-and countless other people-leads us to consider gratitude.
Thanks Made Uisible
I'm a student of happiness Notice I didn't say Zen President of the State Bar offuizona owitittg
about happinessl Does he think he's a
therapist) Or does he need onel What does
that have to do with the pracrice of law in
fuizonal
The reason is because, in addition to
being gratefrrl for the honor ofleading the
Bar, I'm gratefirl for the Bar itself
and for my fellow lawyers who are a
part of it. We are a lucþ lot. And this
month we will once again celebrate
with our families the American tradi-
tion of grateñrlness: Thanksgiving.
One thing we all know about the
experience of gratefrrlness is that we
sometimes experience it by looking
elsewhere. Whether it is seeing the
struggles or losses of others or
simply comparing and conuasting
our circumstances, we are gently
reminded to be appreciative-to be
gratefrrl.
This summer I wæ lucþ enough
to travel through India, a place
that's hot, chaotic, noisy, crowded
and overwhelmingly poor. It is
also a colorfirlly happy place where
people are remarkably kind to one
another, where even the desperately
poor wear the most unlikely smiles,
and where thanksgiving is ritually
observed every day along the ûlthy banks of
the Ganges.
The State Bar of Arizona and the practice
oflaw in fuizona are not perfect, and indeed,
last year there was an attempt to dissolve the
Bar in our lrgislature. Because we're bound
to face that challenge again, I'd invite you
to reflect on how that would be a terrible
mistake. As someone who is licensed by four
bars and actively practices in those states, I
am constantly struck by the remarkable skill
and professionalism of the lawyers in our
state. The State Bar of fuizona is a key con-
tributor to that end.
So when it comes to the State Bar of
Anzona or even the personal struggles we
face throughout the year, let's not once
again have to relearn the lesson that "you
don't know what you've got until its gone."
Instead, let's work to make your Bar and the
practice oflaw in Anzonaeven better. EE
Mæter.
I'm still learning every single day, and many days I have to relearn the
same lessons over again. Nevertheless, I'm going to teach you one of the
most important lessons I've learned about happiness. Consider it the "yoga
of happines," something to exercise your body and soul daily.
You don't know what you've got until it's gone.
There is nothing truer in the human condition. It's true of people in
your life, freedom, health, justice, love, money, power) pets, reputation,
safety, security, success, and even 'þur stuff." It's every little thing, from
air in your tires to ru¡rning'r¡/ater in your home. It all represents the nutri-
ents of happiness and, until it's missing, you never wanted it so badly.
You see, happiness is not a destination, and the dogged "pur-
suit of happiness" is a sure sign you're (I) not happy and (2)
never going to be happy while in such hot pursuit. Happiness is
also not a pro{uct or an end.
We all seem to knowthis intuitively, butwe still seem to think
as though we're on a road trip to a place called Happyville.
Or chiseling away, like Michelangelo, at a piece of marble to
uncover Tlte Døpid. of Høppinesthat will natwally emerge. But
Happyville is not on the GPS, and it is certainly not an enduring,
well-chiseled product of our efforts.
Happiness is gratefrrlness.
There it is. That's it. That's the important lesson I've prom-
ised. It's simple, really. If we were all to begin each day by
recounting "how lucky" we are) we'd be a lot happier.
Why should this matterf Or, more important, why is thelr*L.+
."*..6 ABIZ0NA ATT0RNEY I'I0VEMBER 2015 www.azbar.org/AZAttorney
To set the stage, consider the fottow-
ing data provided by PriceWaterhouse
Coopers (PWC) from a nationa[ study
they conduct each year:
NUMBER OF CHATTENGES FOR ALL EXPERTS:
I 253 in 2OOOI9t3in2O!3(3600/0
increase)
EXPERT WITNESSES EXCTUDED:
I Exctusions in 2013............. .......... 48o/o
r Average exctusions 2000-13 ......460/o
REASONS FON EXCLUSIONS:
r Lack of Retiabi tity........
---.......... 45o/o
r Lacl< of Retevance........ ................. tïo/o
r Quatifi cations 0n|.y...................... tOo/o
I Retiabi tity û Retevance .............. 15o/o
r Retiabitity & QuaLifi cations...........3o/o
t Retevance & Quatifi cation s ..........3o/o
r Retiabitity, Relevance and
Quatifi cations. ........ *-*.. ---..........3o/o
r Missed Deadline.......... -*..-............3o/o
This data shows that, when a Daubert
Chattenge is made, it is successful aþ
most one-ha[f of the time. Ïhis means
that the best strategy is to minimize the
potentiaI that a chattenge witt be fited.
When working with an exPert, it is
important for attorneys to extract the
greatest value from any expert on any
case. Expert witnesses are advised to
consider the fottowing practices in
order to minimize the potential that
a chattenge witl. be fited; and that if
fited, to minimize the potential for it
to be successfut.
ADVEBTISEMENT
I Make sure oll octivities support the
opinions
o Examptes inctuded cases where
the expert provided contradictory
opinions in their dePosition and
where their file did not suPPort
the worl< they were said to have
performed.
t Build a foundation Jor oPinions
o Uttimatety an opinion which is
not buitt on a sotid foundation
is simpl.y specutation. And, the
expert opinion must fit within
the [ega[ framework of the case
I Base the opinion on the most
supportable onswer
O Fottow the evidence; do not try
to make the evidence fit the
opinion the client wants.
t Mínimize assumptions and estimotes;
provide a basis for assumptions and
estimotes
O Assumptions and estimates are
required in almost every case.
This is because evidence is often
incomptete. The expert shoutd do
whatever they can to suPport the
reasons for the need for assumP-
tions and estimates and whY the
assumptions and estimates made
are reasonabte.
o When an expert is invotved eartY
in the discovery process, the
expert is abte to assist counsel in
obtaining the maximum benefit
from discovery in four key areas:
drafting a request for production;
outtining interrogatory questions;
providing deposition questions;
and assisting in research.
t Meet oll report requírements
o The Federal Rules of Evidence in
particutar are very sPecific as to
what is expected for an exPert
witness to include in their report.
Every expert and every attorneY
shoutd have a checktist of the
FederaI requirements to assure
that atl requirements are met.
State courts are not as sPecific
so the expert shoutd worl< with
Counsel to mal<e sure [oca[ rules
are met.
) lhow how the expert testimony will
ossist the trier of fact
O Every opinion issued shoutd have
the specific purpose of assisting
the trier of fact in arriving at a
decision.
Expert Witness Exctuded!
Having an expert witness excluded
can be a disaster for the attorney and
for the expert. This is a situation where
the attorney and expert must work as
a team.
The time for the attorney to chat-
Lenge their own expert is before the
report is issued. This is atso the time
when the ðttorney can worl< with the
expert to mal<e sure the report pro-
vides the most ctear and supportabte
opinions possible.
How to Minimize the Potential
for a Daubert Challenge
When a Daubert Chollengeis made, data showsthatitis
successÍul neorly half of the time.
The best strategy ís to minimize the potentíalthat a
challenge will be fiIed.