The Use of Documents Through Expert Witnesses By John Elrod Hoist
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vidence Rule 703 is well known. It provides that the facts or data of the case upon which one's expert hases an opinion may be those perceived by or made known to him at or before the hearing and that if they are of a type reasonably relied upon by experts in a particular field in forming opinions, the facts or data need not be admissible in evidence. Rule 705 then permits the opposition to force disclosure of the underlying facts or data relied upon by the expert on cross examination. However, we are not told the permissible boundaries of document introduction within the four corners of either rule. Consider that you will typically have two choices for the introduction of the other side's damaging internal documents, confidential engineering studies, product marketing evaluations and the like. First, you can call an officer or manager of the opposition and make introduction through an unfriendly sponsor or second, from a strategic standpoint, you should always assess the possibility of introducing the same documents through your own friendly expert who has reviewed them and relied upon them as a basis for opinion formation. Traditional notions say that lawyers only have two opportunities to speak directly to the jury, during opening statement and closing argu-
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ment. But in reality, through the ere路 ative utilization of experts to sponsor the opposition's damaging internal documents, the attorney will effectively have a third opportunity. Throw them on the screen, pass them to the jury and then through dialogue with your expert massage them, give thorough consideration to the most harmful passages, think about them, dawdle over them and generally utilize your expert to hammer home the concept that what you are looking at is the opposition talking to itself, presumably confidentially. You may thus demonstrate that the decisions which caused harm to your client were conscious, considered decisions. Any good expert witness is, by definition, a good teacher. Consider using those teaching skills to show to the jury a well planned demonstra路 tion of what the opposition was saying to itself. At the same time, don't believe that you can satisfy a prima facie case solely through expert witness document introduction. For instance, in American Uniuersal Ins. Co. u. Falzone 644 F.2d 65 Ost Cir. 1981), the court instructed the jury that a report introduced and accepted into evidence through an expert was admitted 2Ill.Y to show the basis of the expert's opinion and not for the truth of the report and the report itself did not therefore become substantive evidence for all purposes.
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Therefore, while Rule 703 may operate as essentially an additional exception to the rule against hearsay, and the original writing rule (Rule 1002) or may serve as an alternative method of satisfying authentication requirements, differences do remain and the cautious Ht路 igator should therefore view document introduction through an expert as an effective strategy tool as opposed to filling a gap in one's prima facie case. There is also a line of thought which holds that the facts, data, or opinions otherwise admissible in evidence as forming a part of the basis of an expert witness' opinion may be excluded under Rule 403 if the trial court determines that the probative value of such facts or data is substantially outweighed by the dangers of unfair prejudice, being misleading or confusing or a waste of ti me.
People u. Coleman, 38 Cal. 3d 69, 211 Cal. Rptr. 102, 695 P.2d 189 (1985). Even if certain data contained in documents is excluded under Rule 403 from evidence introduction, the expert may still render his opinion if an adequate basis remains otherwise. For a meaty discussion of this whole area see Zenith Radio Corp. u. Matsushita Elec. Inc. Co., Ltd., 505 F.Supp. 1313 (E.D. Pa. 1980), reversed on other grounds 723 F.2d 238 (3d Cir. 1983).