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MCLE Test and Answer Sheet

Test No. 100: Expert Grilling (November 2001 LA Lawyer)

Instructions for Obtaining MCLE Credits
1.Study the CLE article in this issue.

2.Answer the test questions by marking the appropriate boxes. Each question has only one answer. Photocopies of this answer sheet may be submitted; however, this form should not be enlarged or reduced.

3.Mail the answer sheet and the $15 testing fee ($20 for non-LACBA members) to:
Los Angeles Lawyer
P.O. Box 55020
Los Angeles, CA 90055 
Make checks payable to Los Angeles Lawyer.

4.You can also fill in the test form and submit it directly to LACBA by clicking "Submit." To submit your test answers online you will need to pay by credit card. After submitting your answers you will be presented with a screen requesting payment information. This information will be submitted in a secure mode which will allow you to safely transmit your credit card number over the Internet. If you prefer not to pay by credit card, please print this answer sheet and submit your responses by regular mail.

5.Within six weeks, Los Angeles Lawyer will return your test with the correct answers, a rationale for the correct answers, and a certificate verifying the CLE credit you earned through this self-assessment activity.

6.For future reference, please retain the CLE test materials returned to you.
Test Sheet 
Mark your answers to the test by clicking next to your choice. Each question has only one answer. This test is worth 1 hour of credit.*

The plaintiff in a legal malpractice case retains Noah Awl as an expert witness on the standard of care. In the case, the legal malpractice claim arose before the plaintiff filed a Chapter 7 bankruptcy petition, but the legal malpractice claim was filed more than a year after the bankruptcy was closed. The plaintiff/debtor's ability to pursue certain claims in the bankruptcy allegedly were compromised because of the legal malpractice, and the plaintiff sued the lawyers to recover the damages that the plaintiff claims to have suffered. Awl is retained and designated by the plaintiff pursuant to a timely served Code of Civil Procedure Section 2034 notice. The designation indicates that Awl intends to testify on, among other things, "the meaning and application of 7 U.S.C. Section 362 (automatic bankruptcy stay) in the context of the legal malpractice claim" and "how the bankruptcy court judge would have ruled but for the legal malpractice."

1. Generally Awl, like any expert, may be permitted to express opinions on a subject sufficiently beyond the common experience to assist the trier of fact.

2. Legal malpractice cases generally require the testimony of expert witnesses on the standard of care.

3. Bankruptcy law and its impact on the applicable statute of limitations is a proper subject of Awl's expert testimony.

4. Is it proper for the judge to permit Awl to testify about how the bankruptcy judge in the underlying case would have ruled?

5. Expert witnesses in legal malpractice actions are permitted to offer opinions concerning the outcome of the case within a case.

6. A court may find that an expert witness is qualified based on the witness's research and study.

7. Before deposing an expert witness, should counsel obtain the expert's files and resume?
A. No, because experts usually bring these reports to the deposition.
B. Yes, because it is critical to test the expert's qualifications and opinions.
C. Yes, this is required by law.
D. None of the above.

8. Lawyers who previously deposed the expert:

A. May be valuable resources in exploring the expert's qualifications and opinions.
B. May participate in the deposition under Code of Civil Procedure Section 2034(d).
C. May submit letters rogatory to be answered by the expert at the deposition.
D. None of the above..

9. Expert witnesses are required to be independent and unbiased.

10. Establishing a chronology of events from the initial contact of the witness by opposing counsel to the date of the deposition is a useful mechanism to test an expert witness's bias.

11. In the deposition of an expert witness, counsel can probe for bias by examining:
A. The expert's billing records.
B. The expert's prior relationships with opposing counsel and client.
C. The expert's prior work for plaintiff or defense clients.
D. All of the above.

12. Juries tend to rely more on experts who perform their own due diligence.

13. Obtaining the expert witness's file by subpoena in advance of the deposition will make it more likely that documents will not be destroyed or lost.

14. During the deposition, the expert witness should be questioned about all oral or written communications relating to the legal malpractice case with:
A. The attorney who retained the expert and the attorney's staff.
B. The expert's staff.
C. The party for whom the expert was retained.
D. All of the above.

15. Counsel should question the expert witness whether he or she intends—or has been asked—to do additional work after the conclusion of the deposition and before the witness testifies at trial.

Awl is deposed by the defendants' counsel, Jester Tryun. Tryun obtains in advance by subpoena Awl's complete working file on the case, including Awl's report to the plaintiff's counsel, which includes a list of opinions. Tryun asks about each of the opinions contained in Awl's report. Tryun does not ask about any additional opinions that Awl formulated but are not contained in the report—and Awl does not volunteer this information. Weeks later, at trial, in response to direct examination by the plaintiff's counsel, Awl testifies to all his opinions, including those not revealed in his deposition. On cross-examination, Tryun asks, "Why did you not give me those opinions during your deposition?" Awl responds, "You never asked me."

16. What is the best way for Tryun to mitigate being surprised at trial?
A. Making a motion to strike and instructing the jury to disregard the testimony.
B. Confirming, before the deposition was concluded, that Awl had discussed all his opinions.
C. Making a motion in limine to limit the testimony of the expert to the testimony at the expert's deposition.
D. None of the above.

17. Tryun's failure to obtain the opinions prior to trial:
A. Was foreseeable.
B. Was preventable.
C. Reflects on Tryun's lack of diligence.
D. All of the above.

18. Once an expert witness's opinions are obtained, it is essential to determine the factual and legal foundation for each of the opinions.

19. The standard of care in legal malpractice cases is based on prevailing standards in the local community. These can be found by:
A. Attending professional meetings, and working and interacting with colleagues on the subject matter about which the expert is testifying.
B. Teaching and attending continuing legal education courses.
C. Reading professional publications.
D. All of the above.

20. For an expert witness retained in a legal malpractice case, who is the client?
A. The attorney who retained the expert.
B. The party for whom the expert was retained.
C. No one, since the retention of the expert is not an engagement for which legal services are provided.
D. None of the above.

Address and Billing 
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If you do not wish to complete this transaction over the Internet you should print this page and send it to the address listed in Step 3 of the instructions at the top of this page.

*The Los Angeles County Bar Association has been approved as a continuing legal education provider of Minimum Continuing Legal Education credit by The State Bar of California. This self-assessment activity will qualify for Minimum Continuing Legal Education credit by The State Bar of California in the amount of one hour.

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