process. And, of course, an Oregon subpoena sent by mail is hardly enforceable. But an advantage of this approach was the courts were not involved in my investigation and he did not have to get any notice of what I was doing. In the end, over 10 of his customers responded with discovery. In fact, one large customer offered to give me every document he had as long as I did not tell his wife how much he actually spent on such cards. Fourth, we needed to take the data and turn it into admissible evidence. Our approach was to create a spreadsheet listing every card on the insurance itemization schedule, the value admitted by Johnson in his insurance declaration, the sale price, the buyer and date of sale along with a calculation as to how much of the “admitted” value was actually obtained in a sale. We tracked sales of about 15% of the cards and felt this was a sufficient sample to establish an average discount rate to be applied to the remaining unsold cards. This would be the collection value we would seek to present at trial. The exhibits were the spreadsheet (a summary exhibit admissible under OEC 1006), Johnson’s insurance declaration (an admission against interest under OEC 801(4)(b)(A)) and the sales records he provided his customers (also an admission against interest and a business record under OEC 801(6)). Prior to trial, the business records could also be sent to him with a Request for Admission. As to Johnson, we felt there was little he would be able to say to establish his values as his insurance schedule was an admission against interest. Sure, he could argue he sold the good cards and those left were not as valuable, but we felt his “under oath” statement of value along with our sales sampling would seriously undercut such an argument. Then, we had many strategic questions to answer including whether to use expert versus non-expert witnesses. We had the evidence and the trial exhibits, but how would we introduce them and when? Who would be my non-expert witness to explain how this all comes together and creates a foundation for admissibility? Should we offer this evidence before or after Johnson’s expert? And perhaps the most important question, how do we plan for cross-examination of his expert? We assumed Johnson would bring in one of the other authors of his valuation book, who was also a friend, and we were correct. What we did not expect was that his “expert” would claim this $500,000 collection was worth only $80,000, at most. The cross examination would need to be laser focused on the unreliability of his expert’s valuation methodology. The inventory had been admitted by stipulation, but Johnson’s testimony was that the values were puffed up for insurance purposes and did not represent true value. Johnson’s expert testified to the same thing based on his experience. The cross examination of Johnson’s expert was laser focused on 10 cards sold from his prior inventory. I first set the stage to attack the expert’s independence by going through his credentials, establishing how he bought from Johnson, sold to him and wrote for his book. The questions were designed to show he was more of a friend and colleague than an independent expert. The next stage of attack was to undermine his credibility by attacking his methodology. I asked him about cards I knew had not been sold from the inventory and whether or not he knew a card had been sold. I asked what those cards were individually worth and how he would establish the value. All of this was done in a manner to misdirect the witness into thinking I wanted to talk about future sales. I asked him similar questions about the 10 cards I chose as my most representative sales. In each one, his expert testified about Expert Witnesses continued from p. 25 26 Trial Lawyer | Summer 2024
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