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Expert Witness Answer Book 2013
 by Terry Budd, Eric R.I. Cottle, Clifton T. Hutchinson
 
 Copyright: 2013

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  • ISBN Number: 9781402420016
  • Page Count: 570
  • Number of Volumes: 1
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The expert witness, once anomalous, is now integral to virtually every lawsuit. Understanding the rules that regulate when an expert witness may be allowed to testify is vital to successful litigation practice. The newly published Expert Witness Answer Book 2013 walks you through every aspect of this key area, providing, in a direct Q&A format, clear instruction on the legal framework as provided by the Daubert trilogy and subsequent rulings, the qualifications that must be introduced to establish someone as an expert on a particular topic as well as disqualify him or her, and the pretrial activities of experts including designation, disclosure, discovery and depositions.

Expert Witness Answer Book 2013 provides actionable guidance throughout, with specific chapters on issues confronted by experts in the following areas: products liability; toxic torts; trademarks; patents and copyrights, as well the economic damages issues in personal injury, commercial damages, and business and property litigation. Forensic issues in criminal cases and the specific issues in fire cases are also discussed.

Written by contributors with many years of trial experience, each chapter includes practical hints on what works in court and what doesn't. Expert Witness Answer Book 2013 is a handy one-volume softcover publication that can be taken with you into court or deposition to get quick answers to questions that must be answered immediately.

  Preface
  Expert Witness Answer Book 2013 Table of Contents
Chapter 1: What is an Expert Witness?
  • Q 1.1 : What is an Expert Witness?2
    • Q 1.1.1 : What Evidentiary Rules Apply in State Courts?3
  • Q 1.2 : What are the Basic Requirements of Fre702?3
  • Q 1.3 : What is the Appropriate Subject Matter for Expert Testimony?4
  • Q 1.4 : What is the “Helpfulness” Requirement of Fre 702?4
  • Q 1.5 : What Qualifies an Expert Under Fre 702?5
    • Q 1.5.1 : What Level of “knowledge, Skill, Experience, Training, or Education” is Required?5
    • Q 1.5.2 : Can an Expert Qualify Solely Based on Practical Experience?5
  • Q 1.6 : What Foundational Facts or Data are Required for Expert Testimony?6
    • Q 1.6.1 : What Was the Effect of the Amendments on Fre 702?6
    • Q 1.6.2 : What Are “Sufficient” Facts or Data?6
    • Q 1.6.3 : What is Meant by “Reliable” Principles an d Methods?7
    • Q 1.6.4 : What is Meant by “Reliable Application” of Principles an d Methods to the Facts of the Case?7
Chapter 2: The Lay Opinion Witness
  • Q 2.1 : What is a Lay Opinion Witness?12
  • Q 2.2 : What is the Definition Under the Federal Rules of Evidence?12
    • Q 2.2.1 : Is Personal Knowledge Required?13
    • Q 2.2.2 : What is the Limitation of “Rationally Based” Perception?13
    • Q 2.2.3 : What is the Requirement for Helpfulness?14
    • Q 2.2.4 : What was the Purpose of the 2000 Amendment to Fre 701?14
  • Q 2.3 : What Subjects May be Addressed by Lay Opinion Witnesses?15
    • Q 2.3.1 : When Can a Lay Opinion Witness Provide Physical Measurements or Statistics?15
    • Q 2.3.1 : When Can a Lay Opinion Witness Address Custom an d Practice?16
    • Q 2.3.3 : When Can a Lay Opinion Witness Address Valuation an d Damages?16
    • Q 2.3.4 : When Can a Lay Opinion Witness Address Intellectual Property Issues?16
  • Q 2.4 : May a Party’s Employee Provide Lay Opinion Testimony?17
  • Q 2.5 : How Should Lay Opinion Witnesses be Identified in Discovery?18
    • Q 2.5.1 : Must Lay Opinion Witnesses be Designated Like Expert Witnesses?20
    • Q 2.5.2 : Must Lay Opinion Witnesses Prepare an d Produce Reports?20
Chapter 3: Court-Appointed Experts Eric R. I. Cottle ~
Gregory T. Sturges ~
  • Q 3.1 : What Rule Governs Court Appointment of Experts?26
  • Q 3.2 : What is the Role of a Court-appointed Expert?27
  • Q 3.3 : What is the Procedure for the Appointment of an Expert Under Fre 706?28
    • Q 3.3.1 : Can a Trial Court Appoint an Expert on Its Own Motion?29
    • Q 3.3.2 : How is the Court-appointed Expert Selected?29
    • Q 3.3.3 : Do the Parties Have a Role in Selection?29
    • Q 3.3.4 : Is the Court Obligated to Appoint a Witness on a Party’s Motion?30
    • Q 3.3.5 : Must the Expert Serve If Appointed?30
    • Q 3.3.6 : Does a Court’s Appointment of an Expert Limit the Parties’ Use of Their Own Experts?30
  • Q 3.4 : By what Means May a Court-Appointed Expert Receive Information About the Case?30
    • Q 3.4.1 : May Parties Provide Information to a Court-Appointed Expert?31
    • Q 3.4.2 : May Parties Provide Information in Confidence from the Court or the Separate Parties?31
    • Q3.4.3 : May the Court Conduct Off-the-Record Communications with a Court-Appointed Expert?32
  • Q3.5 : What are the Procedures for Disclosure of a Court-Appointed Expert’s Independent Findings?32
    • Q 3.5.1 : Must the Court-Appointed Expert Prepare a Report?32
    • Q 3.5.2 : Can the Court-Appointed Expert Provide Findings in Confidence to the Court Without Disclosure to the Parties?.33
  • Q 3.6 : Is a Court-appointed Expert Subject to Discovery?33
    • Q 3.6.1 : Can the court-appointed expert be deposed by the parties?33
    • Q 3.6.2 : Can the court-appointed expert be represented by counsel at a deposition?34
  • Q 3.7 : What is the Role of a Court-Appointed Expert at Trial?34
    • Q 3.7.1 : Can a Court-Appointed Expert Provide Live Trial Testimony?34
    • Q 3.7.2 : Can the Jury Be Advised That an Expert is Court-appointed?34
    • Q 3.7.3 : Is a Court-Appointed Expert Subject to Cross-examination?34
    • Q 3.7.4 : Can a Court-Appointed Expert Be Asked to Evaluate an d Criticize the Opinions of a Party’s Expert?35
  • Q 3.8 : How is a Court-Appointed Expert Compensated?35
  • Q 3.9 : May a Party Bring Suit Against a Court-Appointed Expert Based On Theories Such As Negligence or Malpractice?35
Chapter 4: The Frye Rule James A. Lowery ~ K&L Gates LLP
  • Q 4.1 : What is theFryeStandard?42
  • Q 4.2 : How Has theFryeStandard Been Interpreted Since The1923 Opinion?43
  • Q 4.3 : What Problems Emerged from the OriginalFryeRule?45
  • Q 4.4 : IsFryeConsistent with the Federal Rules of Evidence?46
  • Q 4.5 : What Remains of theFryeTest in the Wake of Daubert?47
  • Q 4.6 : What Jurisdictions Still FollowFrye?48
    • Q.4.6.1 : How Have States Limited the Application of theFryeTest?48
Chapter 5: Standards for Experts: the Daubert Trilogy Michele C. Barnes ~
  • Q 5.1 : What Problems Led to the Need for Expert Opinion Gatekeeping?52
  • Q 5.2 : What was theDaubertCase?53
    • Q 5.2.1 : What didDaubertDecide Regarding the Frye Rule?53
    • Q 5.2.2 : How doesDaubertDefine the Role of the Trial Judge Under Rule 702?54
    • Q 5.2.3 : What DoesDaubertSay is the Test Under Fre 702?54
    • Q 5.2.4 : What is Required for Evidentiary Reliability?54
    • Q 5.2.5 : What is Required for the Evidentiary Relevance of Expert Opinion?55
    • Q 5.2.6 : What DoesDaubertSay About an Expert’s Methodology and Conclusions?56
  • Q 5.3 : What was the Significance of the Joiner Case?56
    • Q 5.3.1 : What Standard of Review Should Apply to Appeals of Expert Gate Keeping Decisions?57
    • Q 5.3.2 : What is the “Analytical Gap” Test?57
  • Q 5.4 : What was the Significance of the Kumho Tire Case?58
    • Q 5.4.1 : Does Expert Gatekeeping Apply Only to Scientific Testimony or Does It Apply to All Expert Testimony?58
    • Q 5.4.2 : What are the Limitations On the Applicability of theDaubertGatekeeping Factors to Non-Scientific or Experience-based Expert Witnesses?59
    • Q 5.4.3 : How should Courts Address an Expert’s Methodology and Conclusions?59
Chapter 6: Admissibility of Expert Testimony in State Courts James A. Lowery ~ K&L Gates LLP
  • Q 6.1 : What States Have Adopted Daubert or Daubert-Like Standards?64
    • Q 6.1.1 : How Have State Courts Interpreted or Limited Daubert Rules?65
  • Q 6.2 : What States Continue to Follow the Frye Rule?71
    • Q 6.2.1 : How do the Frye States Interpret or Limit the Rule?71
  • Q 6.3 : What States Have Unique Approaches to the Question of Admissibility of Scientific Evidence?74
Chapter 7: Expert Gatekeeping: Qualifications
  • Q 7.1 : What are the Expert Qualifications Standards After Daubert?86
    • Q 7.1.1 : What Must the Proponent Show to Establish Qualifications?86
    • Q 7.1.2 : 2 What is Required to Establish Qualifications by Experience?87
  • Q 7.2 : What Experts Must Be Licensed?87
    • Q 7.2.1 : What Licensing Rules Apply to Physicians?87
    • Q 7.2.2 : What Licensing Rules Apply to Engineering Experts?88
    • Q 7.2.3 : What Licensing Rules Apply to Financial Experts?88
  • Q 7.3 : May a Party Qualify As an Expert?89
  • Q 7.4 : Is an Expert Required to Have Published in the Area of Expertise?89
  • Q 7.5 : Must an Expert Have Experience in the Specific Subject Matter of the Case?90
    • Q 7.5.1 : When is “Local Knowledge” a Required Qualification?90
    • Q 7.5.2 : Can Experts Rely On Others Who Have Specific Experience?91
  • Q 7.6 : May an Expert Establish Qualifications by Testifying?91
  • Q 7.7 : When Should a Trial Court Consider an Expert’s Qualifications?92
  • Q 7.8 : May an Expert Be Found Qualified for Part But Not All Opinions?92
Chapter 8: Expert Gatekeeping: Bases for Opinion Eric R. I. Cottle ~
Gregory T. Sturges ~
  • Q 8.1 : What Rule Governs the Basis of Expert Opinion?98
    • Q 8.1.1 : What is the Effect of the Amendment to Rule 703?98
  • Q 8.2 : On what May an Expert Base His Opinion?99
    • Q 8.2.1 : May an Expert Base Her Opinion On Firsthand Knowledge?99
    • Q 8.2.2 : May an Expert Base Her Opinion On Other Evidence Admitted at Trial or During the Hearing?99
    • Q 8.2.3 : May an Expert Base Her Opinion On Facts or Data Not in Evidence?100
  • Q 8.3 : May the Court Exclude an Expert’s Opinion Because Its Basis is Not Formed by Facts an Data Reasonably Relied up On by a N Expert in the Particular Field?100
    • Q 8.3.1 : What Factors Determine Whether Facts an Data Are Reasonably Relied Upon by an Expert in a Particular Field?100
    • Q 8.3.2 : Can the Expert Establish That His Reliance Materials Are of the Type “Reasonably Relied Upon” By Others in His Field?101
  • Q 8.4 : What are Some Examples of Proper an d Improper Bases for Expert Opinions Under Rule 703? 101
    • Q 8.4.1 : May an Expert Rely On an Unpublished Study As the Basis of Her Opinion?102
    • Q 8.4.2 : May an Expert Rely On Studies That Have Not Been Peer Reviewed As the Basis of Her Opinion?102
    • Q 8.4.3 : May One Expert Rely On an other Expert’s Report?103
Chapter 9: Expert Gatekeeping: Establishing Reliability
  • Q 9.1 : What is the Origin of the Reliability Test for Expert Evidence?108
  • Q 9.2 : How has the Advisory Committee Defined the Reliability Factors of Daubert?109
    • Q 9.2.1 : The First Factor: How have Courts Interpreted an d Applied the Concepts of “Testability” or ”Falsifiability”?109
    • Q 9.2.2 : The First Factor: How is the Testing Requirement Applied in Products Liability Cases?110
    • Q 9.2.3 : The First Factor: How is the Testing Requirement Applied in the Basic Sciences?111
    • Q 9.2.4 : The Second Factor: What is Meant by “Peer Review” an d How Do Courts Apply This Factor?111
    • Q 9.2.5 : The Third Factor: How Have Courts Interpreted an d Applied the Factor of “Error Rate”?112
    • Q 9.2.6 : The Fourth Factor: What is the Significance of the “Standards an d Controls” Factor?113
    • Q 9.2.7 : The Fifth Factor: How Have Courts Interpreted an d Applied “General Acceptance” in Post-Frye Cases?113
  • Q 9.3 : What are Other Significant Indicia of Reliability?114
Chapter 10: Expert Procedure: Designation and Disclosure Terry Budd ~ K&L Gates LLP
Michael J. Ross ~ K&L Gates LLP
  • Q 10.1 : What Rules Apply to the Disclosure of Experts in Federal Court?120
    • Q 10.1.1 : Who Must Be Disclosed?121
    • Q 10.1.2 : When Must Disclosures Be Made?122
    • Q 10.1.3 : Must Disclosures Be Supplemented?122
    • Q 10.1.4 : What are the Possible Consequences of Failing to Make a Proper Expert Witness Disclosure Under the Federal Rules?123
    • Q 10.1.5 : What Constitutes Good Cause/justification for a Late Disclosure?123
    • Q 10.1.6 : May Late Disclosure Be Mitigated by Offering the Expert for Deposition?124
    • Q 10.1.7 : May an Expert Excluded for Some Failure in the Disclosure Be “re-disclosed” If the Case is Retried?125
  • Q 10.2 : What Significant Variations Apply to Expert Disclosure Under State Rules?125
  • Q 10.3 : Is the Service of an Expert Report Sufficient to Constitute Disclosure?127
  • Q 10.4 : Is the Identification of an Expert As One with Knowledge of Discoverable Facts Sufficient?127
  • Q 10.5 : May a Party Designate As Its Own the Experts of an Opponent or Co-Party?127
    • Q 10.5.1 : May a Party Use Global Disclosures to Identify Unnamed Experts?128
  • Q 10.6 : Is Expert Disclosure Required for the Use of an Expert Affidavit in a Summary Judgment Proceeding?128
  • Q 10.7 : May an Expert be “De-designated” or ”De-disclosed”?129
  • Q 10.8 : Is There a Best “Strategy” for expert Disclosures?129
    • Q 10.8.1 : Should the Expert or the Attorney Draft the Disclosure?130
Chapter 11: The Expert Report Terry Budd ~ K&L Gates LLP
Michael J. Ross ~ K&L Gates LLP
  • Q 11.1 : What are the Elements Typically Required in an Expert Report?136
    • Q 11.1.1 : Are Reports Always Required Before a Witness Can Provide Expert Testimony?137
    • Q 11.1.2 : What is the Penalty for Failing to Produce a Report If Required?137
    • Q 11.1.3 : What Issues Arise If the Expert Report is Deficient?137
    • Q 11.1.4 : What is the Extent of Disclosure Required?138
    • Q 11.1.5 : What Discovery is Allowed of the Disclosed Materials?140
  • Q 11.2 : Who May Draft the Expert Report?140
  • Q 11.3 : Who Should Draft the Expert Report?141
  • Q 11.4 : Will the Identity of the Drafter Necessarily Be Disclosed?141
  • Q 11.5 : What Role May an Attorney Take in Report Drafting?142
  • Q 11.6 : Who Should Determine the Scope of the Expert Report?142
  • Q 11.7 : What Should the Scope of the Expert Report Be?143
  • Q 11.8 : What are the Strategic Considerations for the Expense of the Expert Report?144
Chapter 12: Expert Procedure: Discovery and Deposition Gregory R. Youman ~
  • Q 12.1 : What are the Effects of the Amendments to Rule26?152
  • Q 12.2 : What is the Role of Interrogatories in Expert Discovery?152
    • Q 12.2.1 : Do Current Disclosure Rules Preclude the Use of Interrogatories?153
    • Q 12.2.2 : Are There Jurisdictions That Still Rely Upon Interrogatories As the Initial Step in Expert Discovery?153
    • Q 12.2.3 : What Procedural an d Practical Rules Apply to the Form, Completeness, an d Supplementation of Expert Interrogatory answers?154
  • Q 12.3 : What is the Role of Document Requests in Expert Depositions?154
    • Q 12.3.1 : What is the Procedure for Obtaining Expert Documents in Coordination with an Expert Deposition?154
    • Q 12.3.2 : What Expert Documents Are Discoverable?155
    • Q 12.3.3 : What Reliance Documents Must the Expert Produce?155
    • Q 12.3.4 : Must an Expert Produce Reports from Prior Cases?156
  • Q 12.4 : What Discover Y is Available from Consulting Experts?156
  • Q 12.5 : Are Depositions Always Available for Expert Discovery?157
  • Q 12.6 : In What Circumstance Should a Party Consider Not Deposing an Opposing Expert?157
  • Q 12.7 : What is the Procedure for Scheduling an Expert Deposition?158
    • Q 12.7.1 : When Should an Expert’s Deposition Be Scheduled in the Pretrial Process?158
    • Q 12.7.2 : Where Should the Expert Deposition Be Taken?159
    • Q 12.7.3 : How Much Time is Available for an Expert Deposition?159
    • Q 12.7.4 : Is a Subpoena Necessary?159
  • Q 12.8 : What are the Procedural Considerations in Responding to the Deposition Notice?160
  • Q 12.9 : What Procedural Rules Apply to the Taking of the Expert Deposition?160
    • Q 12.9.1 : Must the Deposition Be Taken in Person?160
    • Q 12.9.2 : Who can Attend an Expert Deposition?161
    • Q 12.9.3 : How Many Attorneys May Ask Questions in a Deposition?161
    • Q 12.9.4 : What Rules Apply to Objecting During the Deposition?162
    • Q 12.9.5 : What Objections Are Waived If Not Asserted?162
    • Q 12.9.6 : Can an Expert Be Instructed Not to answer a Question?162
    • Q 12.9.7 : What are Some Practical Methods for Dealing with Counsel Coaching the Expert Witness?163
    • Q 12.9.8 : What Sanctions Are Available for Inappropriate or Abusive Deposition Tactics?163
    • Q 12.9.9 : What are the Procedural an d Strategic Considerations in the Use of Exhibits an d Demonstrative Aids in a Deposition?163
  • Q 12.10 : What are the Procedural an d Practical Distinctions Between a Trial an d a Discovery Expert Deposition?164
  • Q 12.11 : What are the Strategic Goals for an Expert Deposition?164
  • Q 12.12 : What are the Considerations in Developing a Methodology for Expert Deposition Questioning?165
  • Q 12.13 : What are the Practical Considerations in Setting the Tone of the Questioning?165
  • Q 12.14 : What Rules Apply to the Payment of Experts for Preparation an d Attendance at Depositions?165
  • Q 12.15 : What Rules Apply to the Correction of the Deposition Transcript?166
  • Q 12.16 : What Duty of Supplementation Applies to Expert Witnesses?166
  • Q 12.17 : What are the Procedural Rules an d Practical Considerations Regarding the Use of an Expert Deposition at Trial?167
Chapter 13: Expert Procedure: the Gatekeeping Challenge Geoffrey M. Davis ~
  • Q 13.1 : What are the Mechanisms for Making an Expert Gatekeeping Challenge?178
  • Q 13.2 : How does a Court Perform Its Gatekeeping Function?178
  • Q 13.3 : What are the Timing Considerations in Determining When to Formally Make a Gatekeeping Challenge?179
  • Q 13.4 : Are the Standards Applied the Same Regardless of the Specific Gatekeeping Mechanism That is Applied?181
  • Q 13.5 : What needs to be Done Before Making a Gatekeeping Challenge?181
  • Q 13.6 : What is the Standard of Review Applicable to Gatekeeping Determinations?182
  • Q 13.7 : Is a Daubert Hearing Required Before the Court Can Rule On a Gatekeeping Challenge?183
  • Q 13.8 : What are the Strategic Considerations in Deciding Whether to Seek a Daubert Hearing?184
    • Q 13.8.1 : Must the Parties Request a Daubert Hearing?184
    • Q 13.8.2 : What Should a Movant Show to Support a Hearing Request?184
  • Q 13.9 : Can the Admissibility of Expert Testimony Be Challenged Through a Summary Judgment Motion?185
  • Q 13.10 : If a Pre-trial Motion to Strike is Denied, Do Additional Objections Need to Be Made to Preserve the Issue?186
  • Q 13.11 : Can the Court Exclude Unreliable Testimony Even When That Exclusion Would Decide the Case?186
  • Q 13.12 : What Should Be Included in the Opposition to a Daubert Motion?187
Chapter 14: Expert Procedure: Error Preservation and Standards of Review
  • Q 14.1 : What do the federal rules require to preserve error in the admission of expert testimony?194
    • Q 14.1.1 : When Should the Objection to Expert Testimony Be Raised?194
    • Q 14.1.2 : How Much Detail is Required in the Objection?195
    • Q 14.1.3 : Is an Objection by a Co-party Sufficient to Preserve Error?196
    • Q 14.1.4 : Should the Proponent of the Expert Testimony Seek a Ruling On the Record Admitting the Opinions?196
  • Q 14.2 : How Does State Law Regarding Preservation of Error Differ from Federal Law?197
  • Q 14.3 : What is Necessary to Preserve Error in the Exclusion of Expert Testimony for Appellate Review?198
  • Q 14.4 : What is the Standard of Review That Appellate Courts Apply When Reviewing the Exclusion or Admission of Expert Testimony an d Related Rulings?199
    • Q 14.4.1 : Under What Circumstances Does a Trial Court Abuse Its Discretion in Deciding Whether to Admit Expert Opinion Testimony Under Rule 702?199
    • Q 14.4.2 : Under What Circumstances Does a District Court Abuse Its Discretion When Deciding Under Rule Whether Facts or Data Are of the Sort Reasonably Relied On by Experts in the Field?200
    • Q 14.4.3 : Under What Circumstances Does a District Court Abuse Its Discretion When Deciding Under Rule Whether an Expert Has Improperly Offered Testimony On an Ultimate Issue of Fact?200
  • Q 14.5 : What Standard of Review Applies If an Error is Not Properly Preserved?201
  • Q 14.6 : Do Appellate Courts Ever Review Decisions Regarding Admissibility of Expert Testimony De Novo?201
  • Q 14.7 : What Conditions Must an Appellant Establish for a New Trial?202
    • Q 14.7.1 : How Do Courts Determine If an Erroneous Evidentiary Ruling is “Harmless”?202
Chapter 15: The Expert at Trial: Direct Examination Michael J. Ross ~
  • Q 15.1 : What are the Goals of Direct Examination?208
  • Q 15.2 : How do Courts Control Direct Examination?209
    • Q 15.2.1 : How Should Counsel Control the Direct Examination of the Expert?210
  • Q 15.3 : What is the Purpose of Qualifying the Expert On Direct Examination?211
    • Q 15.3.1 : How Should the Expert’s Qualifications Be Presented?212
  • Q 15.4 : How Should the Expert’s Opinions Be Presented?214
    • Q 15.4.1 : Are Hypothetical Questions Necessary?214
    • Q 15.4.2 : Are Hypothetical Questions Advisable?215
    • Q 15.4.3 : Must an Expert Witness Explain the Basis for His or Her Opinions On Direct?215
    • Q 15.4.4 : Should an Expert Witness Explain the Basis for His or Her Opinions On Direct?216
  • Q 15.5 : What is the Role of Credibility of the Expert Witness?217
    • Q 15.5.1 : Must the Direct Examination Feature a Particular Type of “Certainty” Statement?217
    • Q 15.5.2 : What is the Proper Role of “Inoculation” in the Direct Examination of an Expert?218
  • Q 15.6 : What Overall Structural Chronology Should Be Used for the Direct Examination?219
    • Q 15.6.1 : Should the Direct Examination Include an Opinion On the Ultimate Issue?220
  • Q 15.7 : What are Useful Strategies for Redirect Examination?221
Chapter 16: The Expert at Trial: Cross-Examination
  • Q 16.1 : When Should You Begin Preparing for the Cross-examination of an Expert?228
    • Q 16.1.1 : How Important Are the Expert’s Background an d Credentials?228
    • Q 16.1.2 : Why Should I Investigate an d Review an Expert’s Prior Testimony?231
    • Q 16.1.3 : How Many Articles an d Publications Should I Review?232
  • Q 16.2 : Are There Guidelines for Knowing How Long to Examine an Expert Witness?233
    • Q 16.2.1 : How do I Structure My Questions to Get the Most Helpful an swers?234
    • Q 16.2.2 : How do You Best Attack an Expert’s Foundation?236
    • Q 16.2.3 : How do You Use a Learned Treatise to Attack an Expert’s Foundation?241
    • Q 16.2.4 : How do You Impeach an Expert Witness?243
    • Q 16.2.5 : How Do You Exploit an Expert’s Bias?243
    • Q 16.2.6 : How Do You Craft Questions That Elicit Favorable Testimony, Regardless of the answer?244
  • Q 16.3 : Can I Ever Make Sure I Know the answer to Every Question?247
    • Q 16.3.1 : When Should I Ask an y “Risky” Questions?249
    • Q 16.3.2 : What Can You Do When Your Cross-examination Does Not Go According to Plan?249
Chapter 17: The Expert at Trial: Demonstrative Evidence Eric R. I. Cottle ~
Gregory T. Sturges ~
  • Q 17.1 : What is Demonstrative Evidence?254
  • Q 17.2 : What are the Forms of Demonstrative Evidence?254
  • Q 17.3 : What Procedural Rules Govern the Use of Demonstrative Evidence?255
    • Q 17.3.1 : Must Demonstrative Evidence Be Produced in Discovery?255
    • Q 17.3.2 : Must Counsel Proffer Demonstrative Evidence to an Opponent Before Use?255
    • Q 17.3.3 : How Should Counsel Control the Use of Demonstrative Evidence by Opposing Counsel?256
    • Q 17.3.4 : What Timing Considerations Arise with an Expert’s Use of Demonstrative Evidence?257
  • Q 17.4 : What Strategic Considerations Should Guide the Use of Demonstrative Evidence?257
    • Q 17.4.1 : Should an Expert Perform an In-court Demonstration or Experiment?258
  • Q 17.5 : May Demonstrative Exhibits Ever Be Admitted Into Evidence?258
  • Q 17.6 : What Limitations Apply to the Use of Out-of-court Tests an d Simulations?259
    • Q 17.6.1 : Must the Expert Have Performed or Been Present for the Out-of-court Demonstration or Test?260
  • Q 17.7 : What Limitations Apply to the Use of Computer animations?260
Chapter 18: Expert Disqualification Terry Budd ~
Michael J. R. Schalk ~
  • Q 18.1 : What are the Grounds for the Disqualification of an Expert?268
    • Q 18.1.1 : What Fact Situations Have Led to Disqualification Proceedings?268
    • Q 18.1.2 : What Disqualification Issues Arise for an Attorney Who Contacts an Opposing Expert?268
  • Q 18.2 : How Should the Disqualification of an Expert Witness Be Raised with the Court?269
  • Q 18.3 : Can a Party Waive Its Right to Seek the Disqualification of an Expert Witness?269
  • Q 18.4 : What Test Does a Court Apply When Confronted with a Motion to Disqualify an Expert Witness Based On Claims of a Conflict of Interest?269
    • Q 18.4.1 : Do Courts analogize to Attorney-client Privilege Conflicts Law?270
    • Q 18.4.2 : What Factors Will Courts Consider When Evaluating Whether a Confidential Relationship Existed Between the Moving Party an d the Expert Witness?270
    • Q 18.4.3 : What Information Provided to an Expert is or is Not Considered Confidential for Purposes of Disqualification?271
    • Q 18.4.4 : What Additional Considerations Influence a Court When Examining Whether Disqualification is Warranted?271
    • Q 18.4.5 : Will Courts Consider the Ethics Rules or Confidentiality Rules of an Expert’s Particular Profession When Ruling On a Disqualification Motion?272
  • Q 18.5 : Who Bears the Burden in Establishing That an Expert Should Be Disqualified?272
  • Q 18.6 : May an Expert Witness Switch Sides?273
  • Q 18.7 : May Expert Witnesses Working in the Same Firm Testify for Opposing Parties in the Same Case?273
  • Q 18.8 : May an Expert Jointly Retained by Both Parties Become an Expert for One Party at Trial?274
  • Q 18.9 : What is the Standard of Appellate Review for Disqualification of Expert Witnesses?274
  • Q 18.10 : How Can a Trial Attorney Prevent an Expert Witness from Being Disqualified Based On a Conflict of Interest or from “ Switching Sides”?274
Chapter 19: The Expert in Products Liability Terry Budd ~ K&L Gates LLP
Michael J. Ross ~ K&L Gates LLP
  • Q 19.1 : What Fields of Expertise Are Needed in Products Liability Cases?280
  • Q 19.2 : What Considerations Apply to Experts On Damages?281
    • Q 19.2.1 : May Damages Experts Rely On Hearsay for Their Opinions?282
    • Q 19.2.2 : Is the Damages Expert’s Opinion Affected by Legal Rules?282
    • Q 19.2.3 : What Concerns Arise with an Expert’s Damages Assumptions?283
  • Q 19.3 : Are Expert Witnesses Required to Prove Causation?283
  • Q 19.4 : Are Expert Witnesses Required to Prove Defects in Strict Product Liability Cases?284
    • Q 19.4.1 : What Issues Arise with Experts in a Manufacturing Defect Case?284
    • Q 19.4.2 : What are the Issues for Experts in a Design Defect Case?285
    • Q 19.4.3 : Must the Expert Demonstrate an Alternative Design?287
    • Q 19.4.4 : What are the Issues for Experts in a Failure-to-warn Case?287
    • Q 19.4.5 : Is an Expert Always Required to Prove a Failure-to-Warn Claim?287
    • Q 19.4.6 : What Qualifies a Warnings Expert?288
    • Q 19.4.7 : Is an Expert Required to Propose an Alternative Warning?288
  • Q 19.5 : Are Experts Required to Prove Fault in Products Liability Negligence Claims?288
  • Q 19.6 : What are Some of the Strategy Considerations in the Selection of Products Liability Experts?289
Chapter 20: The Expert in Toxic Torts Terry Budd ~
Michael J. R. Schalk ~
  • Q 20.1 : What are the Requirements for Establishing Causation in Toxic Tort Cases?296
    • Q 20.1.1 : What Issues Arise with Causation Alleged Against Multiple Defendants?297
  • Q 20.2 : What Fields of Expertise Are Typically Needed in Toxic Tort Cases?297
    • Q 20.2.1 : Are Expert Witnesses Needed for the Diagnosis of Plaintiff’s Injury?298
    • Q 20.2.2 : What Types of Expert Witnesses Are Used to Establish General Causation?298
    • Q 20.2.3 : What is the Role of Epidemiology in Toxic Tort Cases?298
    • Q 20.2.4 : What Types of Epidemiological Studies Are Useful in Toxic Torts?299
    • Q 20.2.5 : What Types of Expert Witnesses Are Used to Establish Specific Causation?299
    • Q 20.2.6 : What is the Role of Toxicologists?300
    • Q 20.2.7 : What is the Role of animal Studies in Toxic Tort Cases?300
    • Q 20.2.8 : What is the Role of in Vitro Studies?301
    • Q 20.2.9 : May Exposure Levels Be Extrapolated from Studies?301
    • Q 20.2.10 : What is the Role of Industrial Hygienists?301
    • Q 20.2.11 : What is the Importance of the Industrial Hygiene Proof of Exposure Levels?302
  • Q 20.3 : When Should You Get Toxic Tort Expert Witnesses Involved in a Case?302
  • Q 20.4 : How Can the Appropriate Expert Witnesses Be Located for Your Toxic Tort Cases?303
Chapter 21: The Expert in Trademark Infringement Cases Terry Budd ~
Christopher M. Verdini ~
  • Q 21.1 : What are the Relevant Legal Principles of Trademark Infringement Law?308
  • Q 21.2 : Should Expert Testimony Be Used to Establish or Challenge Trademark Validity?309
  • Q 21.3 : Should Expert Testimony Be Used On the Issue of Likelihood of Confusion?311
    • Q 21.3.1 : What Factors Are Used in Determining the Issue of Likelihood of Confusion?311
    • Q 21.3.2 : When is Expert Testimony Needed to Support or Reject a Claim of Likelihood of Confusion?312
  • Q 21.4 : How Should Expert Testimony Be Used to Establish or Refute a Claim of Trademark Infringement Damages?313
  • Q 21.5 : How Do Experts Use Consumer Surveys?314
    • Q 21.5.1 : What Defenses Are Regularly Raised Against the Use of Consumer Surveys in Trademark Cases?315
Chapter 22: The Expert in Copyright Infringement Cases Terry Budd ~
Christopher M. Verdini ~
  • Q 22.1 : How are expert witnesses used to prove or refute a claim of copyright infringement?324
    • Q 22.1.1 : What is the “fair use” defense to copyright infringement?326
  • Q 22.2 : How is Expert Testimony Used to Prove Copyright Infringement Damages?326
Chapter 23: The Expert in Patent Infringement Cases Terry Budd ~
Christopher M. Verdini ~
  • Q 23.1 : How is Expert Testimony Used for Claim Construction?332
  • Q 23.2 : How is Expert Testimony Used to Prove Patent Infringement/non-infringement?333
  • Q 23.3 : How is Expert Testimony Used to Prove Patent Validity/invalidity?334
  • Q 23.4 : How is Expert Testimony Used to Establish or Refute a Claim of Patent Infringement Damages?335
Chapter 24: The Economic Damages Expert: Personal Injury Geoffrey M. Davis ~ K&L Gates LLP
  • Q 24.1 : What is the Role of an Economic Expert in a Personal Injury Case?342
  • Q 24.2 : How Important Are Economic Damages?343
    • Q 24.2.1 : Do All Economic Losses Require the Use of an Economic Expert?343
  • Q 24.3 : What Economic Losses Are Recoverable?344
    • Q 24.3.1 : How are economic losses different in a wrongful death case?344
    • Q 24.3.2 : What is consumption?345
  • Q 24.4 : What Information is Needed in Discovery to Prepare for the Issue of Economic Damages?345
  • Q 24.5 : What are the Key Issues in the Plaintiff’s deposition?346
  • Q 24.6 : How is Lost Income Different from Lost Earning Capacity?347
  • Q 24.7 : How Do Plaintiffs’ Experts Calculate Lost Household Services?348
  • Q 24.8 : What Other Issues Arise with Assumptions Used by Personal Injury Economists?349
    • Q 24.8.1 : How Should Counsel Deal with an Expert Using Inadequate, Inaccurate, or Inapplicable Information?349
    • Q 24.8.2 : Did the Expert Make an y Calculation Errors?350
    • Q 24.8.3 : How Can the Expert’s Assumption Concerning Life Expectancy Be Challenged?350
  • Q 24.9 : How are Future Economic Damages Reduced to Present Value?351
  • Q 24.9.1 : How Can the Assumptions Used by the Expert to Calculate Present Value Be Challenged?352
Chapter 25: The Economic Damages Expert: Commercial Losses
  • Q 25.1 : What Kinds of Experts Might Be Used On Commercial Losses?356
  • Q 25.2 : What Kinds of Cases Involve Commercial Loss Issues That Experts Might Address?356
  • Q 25.3 : Are Certain Types of Damages Common in Commercial Loss Cases?357
    • Q 25.3.1 : What are Lost Profits?357
    • Q 25.3.2 : How Do Experts Generally Measure Lost Profits?357
    • Q 25.3.3 : What Are Common Problems with Expert Testimony About Lost Profits?358
  • Q 25.4 : What Types of Commercial Loss Issues Might an Expert Address in Securities Cases?359
    • Q 25.4.1 : What are Some Problems Affecting Expert Testimony About Securities Damages Testimony?360
  • Q 25.5 : What Types of Commercial Loss Issues Might an Expert Address in antitrust Cases?360
    • Q 25.5.1 : What are Potential Problems with Expert Testimony About antitrust Damages?362
  • Q 25.6 : What Types of Commercial Loss Issues Might an Expert Address in Breach of Contract Cases?362
    • Q 25.6.1 : What Are Potential Problems with Expert Testimony About Contract Damages?363
  • Q 25.7 : What Types of Commercial Loss Issues Might an Expert Address in Breach of Warranty Cases?364
    • Q 25.7.1 : What Are Potential Problems with Expert Damages Testimony in Implied Warranty Cases?364
  • Q 25.8 : What Types of Commercial Loss Issues Might an Expert Address in Patent Cases?365
  • Q 25.9 : What Types of Commercial Loss Issues Might an Expert Address in Trademark an d Copyright Cases?366
  • Q 25.10 : What Types of Commercial Loss Issues Might an Expert Address in Trade Secret Cases?367
    • Q 25.10.1 : What are Potential Problems with Expert Damages Testimony in Trade Secret Cases?367
Chapter 26: The Economic Damages Expert: Business Valuation Jeffrey S. King ~ K&L Gates LLP
  • Q 26.1 : What Kinds of Cases Require Business Valuation Expertise?376
  • Q 26.2 : What are the Qualifications for a Business Valuation Expert?377
    • Q 26.2.1 : Must the Expert Have Experience or Knowledge of the Field or Industry Being Evaluated?378
  • Q 26.3 : What Standards Apply to Business Valuations?378
  • Q 26.4 : What Methodologies Are Used by Business Valuation Experts?379
    • Q 26.4.1 : Is the Use of an y Particular Method Ever Required?381
    • Q 26.4.2 : Do Courts Favor Certain Valuation Methodologies?381
    • Q 26.4.3 : Is the Rule of Thumb Approach Acceptable?381
    • Q 26.4.4 : What issues Arise with the Selection of Discount Rates?381
  • Q 26.5 : What Discount Factors Can Be Considered?382
  • Q 26.6 : What Premium Factors Can Be Considered?382
  • Q 26.7 : What Issues Arise with the Expert’s Selection of Assumptions Regarding Business Performance?383
  • Q 26.8 : Must the Expert Develop Data Independently or Can He Rely Upon Data Provided by the Client or Counsel?384
    • Q 26.8.1 : Is Information Provided by Counsel to the Expert Discoverable?384
Chapter 27: The Economic Damages Expert: Property Valuation
  • Q 27.1 : What are Some of the General Principles an d Considerations for Valuation an d Appraisal Experts?390
    • Q 27.1.1 : What is a Valuation or an Appraisal?390
    • Q 27.1.2 : What Kinds of Property May Be the Subjects of an “Appraisal” or a ”Valuation”?390
    • Q 27.1.3 : What Occasions Can Give Rise to a Need for a Valuation?391
  • Q 27.2 : What are the Qualifications Needed for a Property Appraiser?391
    • Q 27.2.1 : Who Can Provide an Opinion of Value?391
    • Q 27.2.2 : What are Appropriate Areas of Inquiry When Assessing Qualifications of Property Appraisers?392
    • Q 27.2.3 : What Professional Memberships an d Designations May Bear Upon an Appraiser’s Qualifications?393
    • Q 27.2.4 : Does the Appraisal Profession, Apart from Voluntary Professional Organizations, Have Professional Standards of Competency?394
    • Q 27.2.5 : What Governmental Certification or Licensure Should Be Considered?395
    • Q 27.2.6 : Apart from Professional Qualifications, What Other Selection Criteria Are There for an Appraisal or Valuation Expert?396
  • Q 27.3 : What Rules, Other Than Qualification As an Expert, Apply to the Admissibility of Valuation Expert Opinions?396
  • Q 27.4 : How is the Valuation Process Conducted?399
    • Q 27.4.1 : What are the Basic Steps in a Valuation of Real Property?399
    • Q 27.4.2 : What is Meant by “Highest an d Best Use” of the Real Property?399
  • Q 27.5 : What Methodologies May Be Used in a Real Property Valuation?399
    • Q 27.5.1 : What is the Comparable Sales Method of Valuation?400
    • Q 27.5.2 : What is the Cost Method of Valuation?400
    • Q 27.5.3 : What is the Income Method of Valuation?401
    • Q 27.5.4 : Are there Other Valuation Methodologies?401
  • Q 27.6 : What is required for a Valuation Report?402
    • Q 27.6.1 : What is the Purpose of the Valuation Report?402
    • Q 27.6.2 : Are There Industry Standards for the Valuation Report?402
    • Q 27.6.3 : What is the Effect On Admissibility, If the Appraisal Does Not Conform with USPAP?405
  • Q 27.7 : What is an Appraisal Review?405
  • Q 27.8 : Is Compliance with USPAP Required for Non–Real Estate Appraisals?406
  • Q 27.9 : May the Appraiser’s Fee Be Contingent Upon the Value Ultimately Determined, the Closing of the Transaction, or the Success of the Appraiser’s Testimony in Furthering the Client’s Position?406
Chapter 28: Forensic Experts in Criminal Trials Mark Rush ~ K&L Gates LLP
John P. Estep ~ K&L Gates LLP
  • Q 28.1 : What is Forensic Science an d Who Are Forensic Experts?414
    • Q 28.1.1 : What Subjects Are Regularly Addressed by Forensic Experts?414
    • Q 28.1.2 : What Emerging Areas of Forensic Science Are Finding Their Way Into Criminal Courtrooms?415
  • Q 28.2 : Is a Forensic Expert Even Necessary in Your Case?416
    • Q 28.2.1 : What is the “CSI effect”?416
    • Q 28.2.2 : Is Your Proposed Witness Really a Forensic Expert?417
  • Q 28.3 : What Factors Should Be Considered in Choosing a Forensic Expert?418
  • Q 28.4 : What Steps Can Be Taken to Have an Opposing Expert Excluded?419
  • Q 28.5 : How Should Trial Strategy Change When a Forensic Expert is Scheduled to Testify?421
  • Q 28.6 : What Constitutional Issues Do Forensic Experts Present?422
    • Q 28.6.1 : Does the Government’s Reliance On Information Procured by a Non-testifying Expert Violate the Confrontation Clause?422
    • Q 28.6.2 : Does an Indigent Defendant Have a Constitutional Right to a Publicly Funded Forensic Expert?423
    • Q 28.6.3 : How Can Lawyers Become More Familiar with the Bedrock Subjects of Forensic Science?424
Chapter 29: The Expert in Fire Cases
  • Q 29.1 : What Types of Cases Require Expert Testimony Relating to the Cause an d Origin of Fires?430
  • Q 29.2 : What Kinds of Experts Typically Are Involved in Litigation Involving Fires?431
  • Q 29.3 : What Does “Origin an d Cause” mean, an d What is a Fire Investigation?431
  • Q 29.4 : What is the “Gold Standard” for Measuring a Fire Expert’s Methodology?432
    • Q 29.4.1 : In General Terms, What Are the Elements of the NFPA Methodology?433
    • Q 29.4.2 : Does the NFPA 921 Methodology Comport with Daubert Gatekeeping Standards?434
    • Q 29.4.3 : Must the Expert Actually Test Her Hypothesis?435
    • Q 29.4.4 : Must the Expert Rule out Other Potential Causes of the Fire?436
  • Q 29.5 : What are Some of the Formal Qualifications One Should Expect in a Fire Expert?436
  • Q 29.6 : What are Some of the Practical Experiences That One Should Look for in a Fire Expert?437
    • Q 29.6.1 : To Qualify, Must the Expert Have Knowledge or Experience with the Product or Fire Initiator at Issue?437
Chapter 30: The Expert in Defamation Cases
  • Q 30.1 : What is defamation?444
    • Q 30.1.1 : What is a False an d Defamatory Statement?444
    • Q 30.1.2 : What is an Unprivileged Publication to a Third Party?444
    • Q 30.1.3 : What are the Levels of Fault?445
    • Q 30.1.4 : What Makes a Statement Actionable?446
  • Q 30.2 : If a Statement Qualifies As Defamation, Are Presumed Damages the Only Available Damages?447
  • Q 30.3 : Why Does It Matter Whether Damages Are Presumed?447
  • Q 30.4 : Can an Expert Witness Testify to Prove Actual Malice?448
    • Q 30.4.1 : Can an Expert Help Prove Actual Malice?449
  • Q 30.5 : If Experts Cannot Testify As to Actual Malice, What Aid Can They Give?449
    • Q 30.5.1 : Can Experts Assist in Proving That the Statement Was False?450
    • Q 30.5.2 : Can an Expert Help the Defendant Prove Truth?451
    • Q 30.5.3 : Can an Expert Witness Testify to Prove Special Damages?451
    • Q 30.5.4 : Can a Defendant Use an Expert to Rebut Evidence of Special Damages?452
  • Q 30.6 : What Concerns Exist When an Expert Testifies in a Defamation Case?452
Appendix A: 2000 Amendment to FRE 701 plus Committee Note
Appendix B: 2000 Amendment to FRE 702 plus Committee Note
Appendix C: 2000 Amendment to FRE 703 plus Committee Note
  Index to Expert Witness Answer Book 2013

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