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This message has been cross posted to the following Discussions: IALCP and Forensic .
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There is a judge in one of the circuit courts in the Washington DC area who has a reputation as having to be the smartest person in the room.  Many of the attorneys that I work with tell me that he is unusually difficult with them and that he tends to be dismissive of experts in virtually all fields.  I appeared before him in a domestic matter a few years ago, one in which I felt that I had researched particularly well, and he jumped all over me, looking to apply Daubert standards in a Frye state, until the attorney I was working with challenged his right to do that.  Interestingly opposing counsel, with whom I had worked numerous times, jumped on this like white on rice once he saw where the judge was going.  Bottom line for me that day was that I was able to hold my ground and the judge told counsel in chambers that I was "a good sport."

A colleague of mine has not been as fortunate.  She has appeared before him several times, each occasion being succesively more opressive.  On one occasion he did not accept her as an expert (she has testified hundres of times in courts throughout the DC area and had always been accepted before) and his opinion was overturned on appeal in large part due to his error in not accepting her as an expert.  She is scheduled to appear before him today and yesterday when the judge asked counsel who they were calling as experts, when he heard her name he said, "She's not an expert."

This leads me to several questions.  Has anything similar ever happened to you or a colleague that you are aware of and if so, how did you/they handle it in the future?  I am always asked at depositions if I have ever not qualified as an expert or if my testimony has ever been stricken.  So what happens to us if we are not accepted?  Apart from it being a professional affront, it is also a business issue, because in this particular circuit court there is always a chance he will be on the bench which essentially makes us a weak expert at best and useless at worst if the case goes to trial.  (A bench trial anyway.)  

I imagine all of us have had occasions where a judge or a finder of fact has not agreed with our opinion, but this goes beyond that.  If there is only one judge that is making life difficult should we just hope that we don't appear before him often, or do we have recourse?  Would any of you ever consider trying to speak with another circuit court judge with whom we have been treated respectfully and seek their advice?  (Not mentioning the name of their offending colleague.)  Or is this too out of bounds?

Sorry that I rambled on here but I wanted to provide a fair amount of background and see what you folks think.  Thanks in advance for your thoughts. 

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Steven Shedlin, CRC
President
sshedlin@gmail.com
Rockville, MD United States
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Ok I find this very interesting. In my 18 years I only encountered one judge who was clearly prejudicial towards the firm that hired me. It was an "experience" to see how a relationship that my prospective client has with a Judge could adversely affect me in one motion. In that case the client withdrew my opinion so no hang-ups on my end - but the experience forced me to evaluate and take precautions when I am retained by a client who does not have a positive relationship or who is not as prepared as they should be. I learned later that this judge has a reputation for disliking anyone associated with that group. I would suggest that a letter from the client stating for your records that the decision involved legal technical issues. When I take on a new case - my conflict includes all parties including the judge etc involved with a case. I am waiting to see the day an expert files action on a judge for defamation. I think I was shocked during this trial how blatant the judge was against my clients firm.
Original Message----- From: Steven Shedlin [mailto:noreply@egroups.rehabpro.org] Sent: Tuesday, May 14, 2013 11:25 AM To: Rebecca Busch [MBA] Subject: [IARP IALCP]: Judicial temperment This message has been cross posted to the following Discussions: IALCP and Forensic . ------------------------------------------- There is a judge in one of the circuit courts in the Washington DC area who has a reputation as having to be the smartest person in the room. Many of the attorneys that I work with tell me that he is unusually difficult with them and that he tends to be dismissive of experts in virtually all fields. I appeared before him in a domestic matter a few years ago, one in which I felt that I had researched particularly well, and he jumped all over me, looking to apply Daubert standards in a Frye state, until the attorney I was working with challenged his right to do that. Interestingly opposing counsel, with whom I had worked numerous times, jumped on this like white on rice once he saw where the judge was going. Bottom line for me that day was that I was able to hold my ground and the judge told counsel in chambers that I was "a good sport." A colleague of mine has not been as fortunate. She has appeared before him several times, each occasion being succesively more opressive. On one occasion he did not accept her as an expert (she has testified hundres of times in courts throughout the DC area and had always been accepted before) and his opinion was overturned on appeal in large part due to his error in not accepting her as an expert. She is scheduled to appear before him today and yesterday when the judge asked counsel who they were calling as experts, when he heard her name he said, "She's not an expert." This leads me to several questions. Has anything similar ever happened to you or a colleague that you are aware of and if so, how did you/they handle it in the future? I am always asked at depositions if I have ever not qualified as an expert or if my testimony has ever been stricken. So what happens to us if we are not accepted? Apart from it being a professional affront, it is also a business issue, because in this particular circuit court there is always a chance he will be on the bench which essentially makes us a weak expert at best and useless at worst if the case goes to trial. (A bench trial anyway.) I imagine all of us have had occasions where a judge or a finder of fact has not agreed with our opinion, but this goes beyond that. If there is only one judge that is making life difficult should we just hope that we don't appear before him often, or do we have recourse? Would any of you ever consider trying to speak with another circuit court judge with whom we have been treated respectfully and seek their advice? (Not mentioning the name of their offending colleague.) Or is this too out of bounds? Sorry that I rambled on here but I wanted to provide a fair amount of background and see what you folks think. Thanks in advance for your thoughts. ------------------------------------------- Steven Shedlin, CRC President sshedlin@gmail.com Rockville, MD United States -------------------------------------------