A Litigator's Guide to Expert WitnessesThe admission of expert witness testimony remains one of the most contentious, critical, and interesting aspects of modern-day litigation practice. And there is little sign that this tendency will abate anytime soon. The courts have struggled--and will continue to struggle--in their efforts to ensure reliable expert witness testimony without unduly invading the jury's province to indepen-dently assess the credibility of a particular witness.The area is an important one. More than a few lawsuits have been won--and lost--solely on the performance of an expert witness. And many a case has settled before trial simply because a party recognized the capability of the expert retained by the other side. The advantages of well-honed expert testimony at trial are well-known, but expert witnesses can also be very critical in the early stages of litigation--assessing evidence, making suggestions for trial strategy, assembling critical documents, and in all the other tasks involved in preparing for trial.Attorneys who first think of hiring an expert when it is time to draft the witness list or reply to interrogatories will inevitably pay the price. And the price is a dear one. In all but the most routine cases, the attorney must begin the search early on if the client's case is to be advanced as persuasively as possible.A Litigator's Guide to Expert Witnesses, Second Edition strives to approach expert witnesses in a logical fashion. It's not intended to be a scholarly treatise containing reams of supporting citations, but a quick reference guide. The first half of the book sets forth the so-called legal side of things. Chapters 1 and 2 provide a general overview and description of the legal framework. Chapters 3, 4, and 5 relate to discussions of the critical Supreme Court decisions, discovery rules, and evidentiary rules dealing with expert witness testimony. |
Contents
Overview | 1 |
The Decision to Retain an Expert | 2 |
Role of the Expert Witness | 3 |
Consulting and Testifying Experts | 6 |
Admissibility of Testimony | 7 |
Disclosure of Witness Materials | 10 |
Standard of Review | 11 |
The Legal Framework | 13 |
Expert Reports | 91 |
Motions in Limine | 102 |
Affidavit in Support of Expert | 103 |
Jury Selection | 104 |
Preservation of Error | 105 |
Objecting to Experts | 107 |
The Courts Role | 108 |
Examining the Expert | 109 |
Early Evidence Rules | 14 |
Courts as Gatekeepers | 18 |
Supreme Court Decisions | 27 |
The Daubert Opinion | 28 |
The Kumho Tire Opinion | 31 |
The Joiner Opinion | 35 |
Rules of Discovery | 37 |
Discovery of Consulting Experts | 38 |
Discovery of Testifying Experts | 40 |
The Privilege Dilemma | 43 |
Expert Report | 44 |
Rules of Evidence | 49 |
Admission of Expert Testimony Rule 702 | 51 |
Basis of Expert Testimony Rule 703 | 54 |
Ultimate Issues Rule 704 | 56 |
Underlying Facts and Data Rule 705 | 59 |
CourtAppointed Experts Rule 706 | 61 |
Learned Treatises Rule 80318 | 62 |
Reversible Error | 63 |
Selecting Experts | 65 |
Whether to Retain an Expert | 66 |
Locating the Best Candidates | 67 |
Presenting the Case | 71 |
Early Communications with the Expert | 72 |
Background Materials | 74 |
Correspondence with the Expert | 75 |
Disqualification of Experts | 76 |
Precautionary Procedures | 77 |
Side Switching | 78 |
Expert Compensation | 79 |
Chain of Command | 81 |
Presenting Experts | 83 |
Issue Identification | 86 |
Providing Information to the Expert | 87 |
Examinations Tests and Studies | 88 |
Team Approach | 89 |
Timing of the Objections | 110 |
Disclosure of Underlying Facts | 111 |
Moving to Exclude Your Opponents Witness | 112 |
Factors of Reliability | 113 |
Assisting the Trier of Fact | 114 |
Depositions of Experts | 115 |
Preparing Your Expert for Deposition | 119 |
Direct Examination of Experts | 127 |
Foundational Aspects of the Opinion | 128 |
Role of the Examiner | 129 |
Direct Examination of Your Expert | 131 |
CrossExamination of Experts | 145 |
Discovering the Experts Reliability | 146 |
Foundational Evidence | 147 |
Challenges Facing the CrossExaminer | 148 |
Basis of the Opinion | 149 |
Discrediting the Witness | 150 |
Effective CrossExamination Style | 151 |
Subjective Judgment | 152 |
Constructive versus Destructive | 153 |
Attacking the Experts Credentials | 154 |
Information Not Admitted into Evidence | 155 |
Statistics | 156 |
Exposing Personal Bias or Interest | 157 |
Exposing Materials Reviewed by the Expert | 158 |
Courtroom Simulation | 161 |
Responding to Questions About Bias | 163 |
Responding to Questions About Fees | 164 |
William Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 1993 | 165 |
Kumho Tire Company Ltd v Patrick Carmichael 526 US 137 1999 | 183 |
Federal Rules of Civil Procedure Rule 26 General Provisions Governing Discovery Duty of Disclosure | 201 |
Federal Rules of Evidence | 213 |
About the Author | 217 |
219 | |
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Common terms and phrases
Aacme acceptance admitted adversary system Amici Curiae analysis answer applied assist the trier basis Bendectin Carlson's certiorari conclusions considered cross-examination Daubert factors dence deposition determine a fact direct examination disclosure discovery discretion district court documents Evidence 702 evidentiary rules exclude expert report expert testi expert testimony expert witness expert's opinion expert's qualifications expertise fact in issue fact to understand fact witnesses facts or data Federal Rule Frye test hypothetical negotiation hypothetical question inadmissible jury Kumho Tire litigation matter Merrell Dow Pharmaceuticals methodology mony motion in limine opinion or inference opposing counsel opposing expert party's peer review prepared reasonably relied relevant reliabil reliability require response retained royalty Rule of Evidence scientific evidence scientific testimony specialized knowledge standard summary judgment technical testifying expert theory tion trial court trial judge trier of fact ultimate issues underlying facts understand the evidence work-product