TreatiseAnswer Book

Expert Witness Answer Book (2017 Edition)

 by Eric R Cottle, Terry Budd, Clifton T Hutchinson
 
 Copyright: 2017

 Product Details >> 

Product Details

  • ISBN Number: 9781402428487
  • Page Count: 652
  • Number of Volumes: 1
  •  

Expert Witness Answer Book walks you through every aspect of this key area of litigation, providing, in a direct Q&A format, guidance on applying the legal framework set out by the Daubert trilogy and subsequent rulings; qualifying, as well as disqualifying, a witness as an expert on a particular topic; and conducting the pretrial activities involving experts, including designation, disclosure, discovery and depositions.

Expert Witness Answer Book includes practice-specific chapters on issues confronted by experts in cases involving: products liability, toxic torts, trademarks, patents, copyrights, defamation, employment, and fire, as well criminal matters. It includes dedicated chapters on the role of expert testimony in calculating personal injury and commercial damages, and business and property valuation.

Written by contributors with many years of trial experience, each chapter includes practical tips on what works in court and what doesn’t. Expert Witness Answer Book is a one-volume softcover publication that trial attorneys can easily take with them into court or a deposition for on-the-spot answers to questions that arise during proceedings.

  Table of Contents
  Preface
Chapter 1: What Is an Expert Witness? (Rule 702)
  • : Admissibility Standards for Expert Witness2
  • : The Rule2
  • 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 FRE 702?4
  • Q 1.3 : What is the appropriate subject matter for expert testimony?4
  • : Helpfulness5
  • Q 1.4 : What is the “helpfulness” requirement of FRE 702?5
  • : Qualifications5
  • 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?6
  • : Reliability and Foundation6
  • Q 1.6 : What foundational facts or data are required for expert testimony?6
    • Q 1.6.1 : What was the effect of the 2000 amendments on FRE 702?6
    • Q 1.6.2 : What are “sufficient” facts or data?7
    • Q 1.6.3 : What is meant by “reliable” principles and methods?7
    • Q 1.6.4 : What is meant by “reliable application” of principles and methods to the facts of the case?7
Chapter 2: The Lay Opinion Witness (Rule 701)
  • : Definition—The Rule Requirements14
  • Q 2.1 : What is a lay opinion witness?14
  • Q 2.2 : What is the definition under the Federal Rules of Evidence?14
    • Q 2.2.1 : Is personal knowledge required?15
    • Q 2.2.2 : May hypothetical questions be used?15
    • : “Rationally Based” Perception16
    • Q 2.2.3 : What is the limitation of “rationally based” perception?16
    • : “Helpfulness”16
    • Q 2.2.4 : What is the requirement for helpfulness?16
    • : “Not Based on Scientific, Technical or Other Specialized Knowledge”16
    • Q 2.2.5 : What was the purpose of the 2000 amendment to FRE 701?16
  • : Subjects That May Be Addressed by Lay Opinion Witnesses17
  • Q 2.3 : What subjects may be addressed by lay opinion witnesses?17
    • Q 2.3.1 : When can a lay opinion witness provide physical measurements or statistics?17
    • Q 2.3.2 : When can a lay opinion witness address custom and practice?18
    • Q 2.3.3 : When can a lay opinion witness address valuation and damages?18
    • Q 2.3.4 : When can a lay opinion witness address intellectual property issues?19
  • : A Party’s Employee As Lay Opinion Witness20
  • Q 2.4 : May a party’s employee provide lay opinion testimony?20
  • : Disclosure of Lay Opinion Witnesses21
  • Q 2.5 : How should lay opinion witnesses be identified in discovery?21
    • Q 2.5.1 : Must lay opinion witnesses be designated like expert witnesses?21
    • Q 2.5.2 : Must lay opinion witnesses prepare and produce reports?22
Chapter 3: Court-Appointed Experts (Rule 706)
  • : The Rule28
  • Q 3.1 : What rule governs court appointment of experts?28
  • : Role of Court-Appointed Expert30
  • Q 3.2 : What is the role of a court-appointed expert?30
    • Q 3.2.1 : When is a court-appointed expert “neutral” under FRE 706?31
  • : Procedure for Appointment31
  • Q 3.3 : What is the procedure for the appointment of an expert under FRE 706?31
    • Q 3.3.1 : Can a trial court appoint an expert on its own motion?31
    • Q 3.3.2 : How is the court-appointed expert selected?31
    • Q 3.3.3 : Do the parties have a role in selection?32
    • Q 3.3.4 : Is the court obligated to appoint a witness on a party’s motion?32
    • Q 3.3.5 : Must the expert serve if appointed?33
    • Q 3.3.6 : Does a court’s appointment of an expert limit the parties’ use of their own experts?33
  • : How Information Is Provided to Expert33
  • Q 3.4 : By what means may a court-appointed expert receive information about the case?33
    • Q 3.4.1 : May parties provide information to a court-appointed expert?33
    • Q 3.4.2 : May parties provide information in confidence from the court or the separate parties?33
    • Q 3.4.3 : May the court conduct off-the-record communications with a court-appointed expert?34
  • : How Expert’s Findings Are Disclosed35
  • Q 3.5 : What are the procedures for disclosure of a court-appointed expert’s independent findings?35
    • Q 3.5.1 : Must the court-appointed expert prepare a report?35
    • Q 3.5.2 : Can the court-appointed expert provide findings in confidence to the court without disclosure to the parties?35
  • : Deposition of Expert36
  • Q 3.6 : Is a court-appointed expert subject to discovery?36
    • Q 3.6.1 : Can the court-appointed expert be deposed by the parties?36
    • Q 3.6.2 : Can the court-appointed expert be represented by counsel at a deposition?36
  • : Trial Role of Expert37
  • Q 3.7 : What is the role of a court-appointed expert at trial?37
    • Q 3.7.1 : Can a court-appointed expert provide live trial testimony?37
    • Q 3.7.2 : Can the jury be advised that an expert is court-appointed?37
    • Q 3.7.3 : Is a court-appointed expert subject to cross-examination?37
    • Q 3.7.4 : Can a court-appointed expert be asked to evaluate and criticize the opinions of a party’s expert?37
  • : Compensation38
  • Q 3.8 : How is a court-appointed expert compensated?38
  • : Expert’s Liability38
  • Q 3.9 : May a party bring suit against a court-appointed expert based on theories such as negligence or malpractice?38
Chapter 4: The Frye Rule
  • : The Frye Standard44
  • Q 4.1 : What is the Frye standard?44
  • Q 4.2 : How has the Frye standard been interpreted since the 1923 opinion?45
  • : Criticisms of Frye47
  • Q 4.3 : What problems emerged from the original Frye rule?47
  • : Frye and the Federal Rules of Evidence48
  • Q 4.4 : Is Frye consistent with the Federal Rules of Evidence?48
  • : Frye Post-Daubert49
  • Q 4.5 : What remains of the Frye test in the wake of Daubert?49
  • Q 4.6 : What jurisdictions still follow Frye or are shifting away from it?50
    • Q 4.6.1 : How have states limited the application of the Frye test?52
Chapter 5: Standards for Experts: The Daubert Trilogy
  • : Problems with Frye58
  • Q 5.1 : What problems led to the need for expert opinion gatekeeping?58
  • : The Changes Made by Daubert59
  • Q 5.2 : What was the Daubert case?59
    • Q 5.2.1 : What did Daubert decide regarding the Frye rule?59
    • Q 5.2.2 : How does Daubert define the role of the trial judge under FRE 702?60
    • Q 5.2.3 : What does Daubert say is the test under FRE 702?60
    • Q 5.2.4 : What is required for evidentiary reliability?60
    • : “Relevant Evidence”61
    • Q 5.2.5 : What is required for the evidentiary relevance of expert opinion?61
    • Q 5.2.6 : What does Daubert say about an expert’s methodology and conclusions?62
  • : The Joiner Case62
  • Q 5.3 : What was the significance of the Joiner case?62
    • Q 5.3.1 : What standard of review should apply to appeals of expert gatekeeping decisions?63
    • Q 5.3.2 : What is the “analytical gap” test?63
  • : The Kumho Tire Case64
  • Q 5.4 : What was the significance of the Kumho Tire case?64
    • Q 5.4.1 : Does expert gatekeeping apply only to scientific testimony or does it apply to all expert testimony?64
    • Q 5.4.2 : What are the limitations on the applicability of the Daubert gatekeeping factors to non-scientific or experience-based expert witnesses?65
    • Q 5.4.3 : How should courts address an expert’s methodology and conclusions?65
Chapter 6: Admissibility of Expert Testimony in State Courts
  • : States Following Daubert70
  • Q 6.1 : What states have adopted Daubert or Daubert-like standards?70
    • Q 6.1.1 : How have state courts interpreted or limited Daubert rules?71
  • : States Following Frye78
  • Q 6.2 : What states continue to follow the Frye rule?78
    • Q 6.2.1 : How do the Frye states interpret or limit the rule?78
  • : States with Unique Tests80
  • Q 6.3 : What states have unique approaches to the question of admissibility of scientific evidence?80
Chapter 7: Expert Gatekeeping: Qualifications
  • : Qualifications Standards—Reliability94
  • Q 7.1 : What are the expert qualifications standards after Daubert?94
    • Q 7.1.1 : What must the proponent show to establish qualifications?94
    • Q 7.1.2 : What is required to establish qualifications by experience?95
  • : Are Licenses Required?95
  • Q 7.2 : What experts must be licensed?95
    • : Physicians96
    • Q 7.2.1 : What licensing rules apply to physicians?96
    • : Engineers96
    • Q 7.2.2 : What licensing rules apply to engineering experts?96
    • : Financial Experts97
    • Q 7.2.3 : What licensing rules apply to financial experts?97
  • : Parties As Expert Witnesses97
  • Q 7.3 : May a party qualify as an expert?97
  • : Indicia of Expertise98
  • : Publications98
  • Q 7.4 : Is an expert required to have published in the area of expertise?98
  • : Subject Matter Experience98
  • Q 7.5 : Must an expert have experience in the specific subject matter of the case?98
    • Q 7.5.1 : When is “local knowledge” a required qualification?99
    • Q 7.5.2 : Can experts rely on others who have specific experience?99
  • : Expertise Preexists Litigation100
  • Q 7.6 : May an expert establish qualifications by testifying?100
  • : Court Consideration of Expert’s Qualifications100
  • Q 7.7 : When should a trial court consider an expert’s qualifications?100
  • Q 7.8 : May an expert be found qualified for part but not all opinions?101
Chapter 8: Expert Gatekeeping: Bases for Opinion (Rule 703)
  • : The Federal Rule108
  • Q 8.1 : What rule governs the basis of expert opinion?108
    • Q 8.1.1 : What is the effect of the 2000 Amendment to FRE 703?108
  • : Bases of Opinion109
  • Q 8.2 : On what may an expert base his opinion?109
    • Q 8.2.1 : May an expert base her opinion on firsthand knowledge?109
    • Q 8.2.2 : May an expert base her opinion on other evidence admitted at trial or during the hearing?109
    • Q 8.2.3 : May an expert base her opinion on facts or data not in evidence?110
  • : Tests for Background Data110
  • Q 8.3 : May the court exclude an expert’s opinion because its basis is not formed by facts and data reasonably relied upon by an expert in the particular field?110
    • Q 8.3.1 : What factors determine whether facts and data are reasonably relied upon by an expert in a particular field?110
    • Q 8.3.2 : Can the expert establish that his reliance materials are of the type “reasonably relied upon” by others in his field?111
  • Q 8.4 : What are some examples of proper and improper bases for expert opinions under FRE 703?111
    • Q 8.4.1 : May an expert rely on an unpublished study as the basis of her opinion?112
    • Q 8.4.2 : May an expert rely on studies that have not been peer reviewed as the basis of her opinion?113
    • Q 8.4.3 : May one expert rely on another expert’s report?113
Chapter 9: Expert Gatekeeping: Establishing Reliability
  • : Origin of Reliability Test120
  • Q 9.1 : What is the origin of the reliability test for expert evidence?120
    • Q 9.1.1 : Is the reliability inquiry directed only to the expert’s methodology?121
  • : Advisory Committee Reliability Factors121
  • Q 9.2 : How has the Advisory Committee defined the reliability factors of Daubert?121
    • : “Testability” or “Falsifiability”122
    • Q 9.2.1 : The First Factor: How have courts interpreted and applied the concepts of “testability” or “falsifiability”?122
    • Q 9.2.2 : The First Factor: How is the testing requirement applied in products liability cases?122
    • Q 9.2.3 : The First Factor: How is the testing requirement applied in the basic sciences?123
    • : Peer Review of Studies124
    • Q 9.2.4 : The Second Factor: What is meant by “peer review” and how do courts apply this factor?124
    • : Error Rate125
    • Q 9.2.5 : The Third Factor: How have courts interpreted and applied the factor of “error rate”?125
    • : Standards and Controls125
    • Q 9.2.6 : The Fourth Factor: What is the significance of the “standards and controls” factor?125
    • : General Acceptance126
    • Q 9.2.7 : The Fifth Factor: How have courts interpreted and applied “general acceptance” in post-Frye cases?126
  • : Other Factors Indicating Reliability127
  • Q 9.3 : What are other significant indicia of reliability?127
Chapter 10: Expert Procedure: Designation and Disclosure
  • : Disclosure in Federal Courts134
  • Q 10.1 : What rules apply to the disclosure of experts in federal court?134
    • Q 10.1.1 : Who must be disclosed?135
    • Q 10.1.2 : When must disclosures be made?136
    • Q 10.1.3 : Must disclosures be supplemented?136
    • Q 10.1.4 : What are the possible consequences of failing to make a proper expert witness disclosure under the federal rules?137
    • Q 10.1.5 : What constitutes good cause/justification for a late disclosure?138
    • Q 10.1.6 : May late disclosure be mitigated by offering the expert for deposition?138
    • Q 10.1.7 : May an expert excluded for some failure in the disclosure be “re-disclosed” if the case is retried?139
    • Q 10.1.8 : What effect, if any, does the new definition of discoverable material under FRCP 26 have on expert disclosure?139
  • : Disclosure in State Courts140
  • Q 10.2 : What significant variations apply to expert disclosure under state rules?140
  • : Disclosure Sufficiency142
  • Q 10.3 : Is the service of an expert report sufficient to constitute disclosure?142
  • Q 10.4 : Is the identification of an expert as one with knowledge of discoverable facts sufficient?142
  • : Disclosure Strategies142
  • Q 10.5 : May a party designate as its own the experts of an opponent or co-party?142
    • Q 10.5.1 : May a party use global disclosures to identify unnamed experts?143
  • Q 10.6 : Is expert disclosure required for the use of an expert affidavit in a summary judgment proceeding?143
  • Q 10.7 : May an expert be “de-designated” or “de-disclosed”?144
  • Q 10.8 : Is there a best “strategy” for expert disclosures?144
    • Q 10.8.1 : Should the expert or the attorney draft the disclosure?145
Chapter 11: The Expert Report
  • : Elements of the Report152
  • Q 11.1 : What are the elements typically required in an expert report?152
    • Q 11.1.1 : Are reports always required before a witness can provide expert testimony?153
    • Q 11.1.2 : What is the penalty for failing to produce a report if required?153
    • Q 11.1.3 : What issues arise if the expert report is deficient?153
    • Q 11.1.4 : What is the extent of disclosure required?154
    • Q 11.1.5 : What discovery is allowed of the disclosed materials?156
    • Q 11.1.6 : What effect, if any, does the new definition of discoverable material under FRCP 26 have on expert reports?156
  • : Authorship of the Report157
  • Q 11.2 : Who may draft the expert report?157
  • Q 11.3 : Who should draft the expert report?157
  • Q 11.4 : Will the identity of the drafter necessarily be disclosed?158
  • Q 11.5 : What role may an attorney take in report drafting?159
  • : Scope of the Report159
  • Q 11.6 : Who should determine the scope of the expert report?159
  • Q 11.7 : What should the scope of the expert report be?160
  • Q 11.8 : What are the strategic considerations for the expense of the expert report?161
Chapter 12: Expert Procedure: Discovery and Deposition
  • : Rule 26 Amendments168
  • Q 12.1 : What are the effects of the amendments to Rule 26?168
  • : Expert Interrogatories169
  • Q 12.2 : What is the role of interrogatories in expert discovery?169
    • Q 12.2.1 : Do current disclosure rules preclude the use of interrogatories?170
    • Q 12.2.2 : Are there jurisdictions that still rely upon interrogatories as the initial step in expert discovery?170
    • Q 12.2.3 : What procedural and practical rules apply to the form, completeness, and supplementation of expert interrogatory answers?170
  • : Expert Document Requests171
  • Q 12.3 : What is the role of document requests in expert depositions?171
    • Q 12.3.1 : What is the procedure for obtaining expert documents in coordination with an expert deposition?171
    • Q 12.3.2 : What expert documents are discoverable?171
    • Q 12.3.3 : What reliance documents must the expert produce?172
    • Q 12.3.4 : Must an expert produce reports from prior cases?173
  • : Discovery of Consulting Experts173
  • Q 12.4 : What discovery is available from consulting experts?173
  • : Expert Depositions174
  • Q 12.5 : Are depositions always available for expert discovery?174
  • Q 12.6 : In what circumstance should a party consider not deposing an opposing expert?174
  • : Scheduling the Expert Deposition175
  • Q 12.7 : What is the procedure for scheduling an expert deposition?175
    • Q 12.7.1 : When should an expert’s deposition be scheduled in the pre-trial process?175
    • Q 12.7.2 : Where should the expert deposition be taken?176
    • Q 12.7.3 : How much time is available for an expert deposition?176
    • Q 12.7.4 : Is a subpoena necessary?176
  • Q 12.8 : What are the procedural considerations in responding to the deposition notice?177
  • : Procedural Rules Applicable to an Expert Deposition177
  • Q 12.9 : What procedural rules apply to the taking of the expert deposition?177
    • Q 12.9.1 : Must the deposition be taken in person?177
    • Q 12.9.2 : Who can attend an expert deposition?178
    • Q 12.9.3 : How many attorneys may ask questions in a deposition?178
    • Q 12.9.4 : What rules apply to objecting during the deposition?178
    • Q 12.9.5 : What objections are waived if not asserted?179
    • Q 12.9.6 : Can an expert be instructed not to answer a question?179
    • Q 12.9.7 : What are some practical methods for dealing with counsel coaching the expert witness?179
    • Q 12.9.8 : What sanctions are available for inappropriate or abusive deposition tactics?180
    • Q 12.9.9 : What are the procedural and strategic considerations in the use of exhibits and demonstrative aids in a deposition?180
  • : Distinctions Between a Trial and a Discovery Deposition181
  • Q 12.10 : What are the procedural and practical distinctions between a trial and a discovery expert deposition?181
  • : Deposition Strategies181
  • Q 12.11 : What are the strategic goals for an expert deposition?181
  • Q 12.12 : What are the considerations in developing a methodology for expert deposition questioning?182
  • Q 12.13 : What are the practical considerations in setting the tone of the questioning?182
  • : Payment of Experts182
  • Q 12.14 : What rules apply to the payment of experts for preparation and attendance at depositions?182
  • : Correction and Supplementation of Deposition183
  • Q 12.15 : What rules apply to the correction of the deposition transcript?183
  • Q 12.16 : What duty of supplementation applies to expert witnesses?183
  • : How an Expert Deposition May Be Used at Trial184
  • Q 12.17 : What are the procedural rules and practical considerations regarding the use of an expert deposition at trial?184
Chapter 13: Expert Procedure: The Gatekeeping Challenge
  • : Gatekeeping Methodologies200
  • Q 13.1 : What are the mechanisms for making an expert gatekeeping challenge?200
  • Q 13.2 : How does a court perform its gatekeeping function?200
  • : Timing Considerations201
  • Q 13.3 : What are the timing considerations in determining when to formally make a gatekeeping challenge?201
  • : Standards Used in Gatekeeping Decisions203
  • Q 13.4 : Are the standards applied the same regardless of the specific gatekeeping mechanism that is applied?203
    • Q 13.4.1 : How are the standards affected when state law is applied in a federal court action?203
  • Q 13.5 : What needs to be done before making a gatekeeping challenge?204
  • : Standard of Review205
  • Q 13.6 : What is the standard of review applicable to gatekeeping determinations?205
  • : Daubert Hearings and Gatekeeping205
  • Q 13.7 : Is a Daubert hearing required before the court can rule on a gatekeeping challenge?205
  • : Gatekeeping Strategies206
  • Q 13.8 : What are the strategic considerations in deciding whether to seek a Daubert hearing?206
    • Q 13.8.1 : Must the parties request a Daubert hearing?207
    • Q 13.8.2 : What should a movant show to support a hearing request?207
  • Q 13.9 : Can the admissibility of expert testimony be challenged through a summary judgment motion?208
  • Q 13.10 : If a pre-trial motion to strike is denied, do additional objections need to be made to preserve the issue?209
  • Q 13.11 : Can the court exclude unreliable testimony even when that exclusion would decide the case?209
  • : Content of an Opposition to a Daubert Motion210
  • Q 13.12 : What should be included in the opposition to a Daubert motion?210
Chapter 14: Expert Procedure: Error Preservation and Standards of Review
  • : Preservation of Error216
  • Q 14.1 : What do the federal rules require a party to do to preserve error in the admission of expert testimony?216
    • Q 14.1.1 : When should the objection to expert testimony be raised?216
    • Q 14.1.2 : How much detail is required in the objection?217
    • Q 14.1.3 : Is an objection by a co-party sufficient to preserve error?218
    • Q 14.1.4 : Should the proponent of the expert testimony seek a ruling on the record admitting the opinions?218
  • : Preservation of Error—State Law Versus Federal Law218
  • Q 14.2 : How does state law regarding preservation of error differ from federal law?218
  • : Preservation of Error—Expert Excluded219
  • Q 14.3 : What is necessary to preserve error in the exclusion of expert testimony?219
  • : Standards of Review220
  • Q 14.4 : What standards of review do appellate courts apply when reviewing the exclusion or admission of expert testimony and related rulings?220
    • Q 14.4.1 : Under what circumstances does a trial court abuse its discretion in deciding whether to admit expert testimony under FRE 702?221
    • Q 14.4.2 : Under what circumstances does a trial court abuse its discretion when deciding under FRE 703 whether facts or data are of the sort reasonably relied on by experts in the field?221
    • Q 14.4.3 : Under what circumstances does a trial court abuse its discretion when deciding under FRE 704 whether an expert has improperly offered testimony on an ultimate issue of fact?222
  • Q 14.5 : What standard of review applies if an error is not properly preserved?222
  • Q 14.6 : Do appellate courts ever review decisions regarding expert testimony de novo?223
  • : Standards for a New Trial224
  • Q 14.7 : What conditions must an appellant satisfy to win a new trial?224
    • Q 14.7.1 : How do courts determine if an erroneous evidentiary ruling is “harmless”?224
Chapter 15: The Expert at Trial: Direct Examination
  • : Goals of Direct Examination232
  • Q 15.1 : What are the goals of direct examination?232
  • : Control of Direct Examination233
  • Q 15.2 : How do courts control direct examination?233
    • Q 15.2.1 : How should counsel control the direct examination of the expert?234
  • : Qualification of the Expert235
  • Q 15.3 : What is the purpose of qualifying the expert on direct examination?235
    • Q 15.3.1 : How should the expert’s qualifications be presented?236
  • : Presentation of Opinions238
  • Q 15.4 : How should the expert’s opinions be presented?238
    • Q 15.4.1 : Are hypothetical questions necessary?238
    • Q 15.4.2 : Are hypothetical questions advisable?239
    • Q 15.4.3 : Must an expert witness explain the basis for his or her opinions on direct?239
    • Q 15.4.4 : Should an expert witness explain the basis for his or her opinions on direct?240
  • : Establishing Credibility241
  • Q 15.5 : What is the role of credibility of the expert witness?241
    • Q 15.5.1 : Must the direct examination feature a particular type of “certainty” statement?241
    • Q 15.5.2 : What is the proper role of “inoculation” in the direct examination of an expert?242
  • : Chronology of Direct Examination243
  • Q 15.6 : What overall structural chronology should be used for the direct examination?243
    • Q 15.6.1 : Should the direct examination include an opinion on the ultimate issue?244
  • Q 15.7 : What are useful strategies for redirect examination?245
Chapter 16: The Expert at Trial: Cross-Examination
  • : Comprehensive Preparation252
  • Q 16.1 : When should you begin preparing for the cross-examination of an expert?252
    • Q 16.1.1 : How important are the expert’s background and credentials?252
    • Q 16.1.2 : Why should I investigate and review an expert’s prior testimony?255
    • Q 16.1.3 : How many articles and publications should I review?256
    • Q 16.1.4 : How do I use the reliance materials provided by the expert?257
    • Q 16.1.5 : Should I consider providing articles to the opposing expert to review in advance of the deposition?258
  • : Highly Effective Cross-Examination Techniques259
  • Q 16.2 : Are there guidelines for knowing how long to examine an expert witness?259
    • Q 16.2.1 : How do I structure my questions to get the most helpful answers?260
    • Q 16.2.2 : How do you best attack an expert’s foundation?262
    • Q 16.2.3 : How do you use a learned treatise to attack an expert’s foundation?267
    • Q 16.2.4 : How do you impeach an expert witness?269
    • Q 16.2.5 : How do you exploit an expert’s bias?269
    • Q 16.2.6 : How do you craft questions that elicit favorable testimony, regardless of the answer?272
  • : Miscellaneous Matters275
  • Q 16.3 : Can I ever make sure I know the answer to every question?275
    • Q 16.3.1 : When should I ask any “risky” questions?277
    • Q 16.3.2 : What can you do when your cross-examination does not go according to plan?277
Chapter 17: The Expert at Trial: Demonstrative Evidence
  • : Demonstrative Evidence Defined282
  • Q 17.1 : What is demonstrative evidence?282
  • Q 17.2 : What are the forms of demonstrative evidence?282
  • : Procedural Rules for Demonstrative Evidence283
  • Q 17.3 : What procedural rules govern the use of demonstrative evidence?283
    • Q 17.3.1 : Must demonstrative evidence be produced in discovery?283
    • Q 17.3.2 : Must counsel proffer demonstrative evidence to an opponent before use?283
    • Q 17.3.3 : How should counsel control the use of demonstrative evidence by opposing counsel?284
    • Q 17.3.4 : What timing considerations arise with an expert’s use of demonstrative evidence?285
  • : Strategies for Demonstrative Evidence285
  • Q 17.4 : What strategic considerations should guide the use of demonstrative evidence?285
    • Q 17.4.1 : Should an expert perform an in-court demonstration or experiment?286
  • : Evidentiary Considerations286
  • Q 17.5 : May demonstrative exhibits ever be admitted into evidence?286
  • Q 17.6 : What limitations apply to the use of out-of-court tests and simulations?287
    • Q 17.6.1 : Must the expert have performed or been present for the out-of-court demonstration or test?288
  • Q 17.7 : What limitations apply to the use of computer animations?289
Chapter 18: Expert Disqualification
  • : Grounds for Disqualification296
  • Q 18.1 : What are the grounds for the disqualification of an expert?296
    • Q 18.1.1 : What fact situations have led to disqualification proceedings?296
    • Q 18.1.2 : What disqualification issues arise for an attorney who contacts an opposing expert?297
  • : Presenting the Issue to the Court297
  • Q 18.2 : How should the disqualification of an expert witness be raised with the court?297
  • Q 18.3 : Can a party waive its right to seek the disqualification of an expert witness?297
  • : Tests for Disqualification298
  • 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?298
    • Q 18.4.1 : Do courts analogize to attorney-client privilege conflicts law?298
    • Q 18.4.2 : What factors will courts consider when evaluating whether a confidential relationship existed between the moving party and the expert witness?298
    • Q 18.4.3 : What information provided to an expert is or is not considered confidential for purposes of disqualification?299
    • Q 18.4.4 : What additional considerations influence a court when examining whether disqualification is warranted?300
    • 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?300
  • : Burden of Proof301
  • Q 18.5 : Who bears the burden in establishing that an expert should be disqualified?301
  • : Expert Conflicts301
  • Q 18.6 : May an expert witness switch sides?301
  • Q 18.7 : May expert witnesses working in the same firm testify for opposing parties in the same case?302
  • Q 18.8 : May an expert jointly retained by both parties become an expert for one party at trial?302
  • Q 18.9 : What is the standard of appellate review for disqualification of expert witnesses?302
  • 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”?303
Chapter 19: The Expert in Products Liability
  • : Necessary Fields of Expertise310
  • Q 19.1 : What fields of expertise are needed in products liability cases?310
  • : Damages Experts311
  • Q 19.2 : What considerations apply to experts on damages?311
    • Q 19.2.1 : May damages experts rely on hearsay for their opinions?312
    • Q 19.2.2 : Is the damages expert’s opinion affected by legal rules?312
    • Q 19.2.3 : What concerns arise with an expert’s damages assumptions?313
  • : Experts on Causation313
  • Q 19.3 : Are expert witnesses required to prove causation?313
  • : Strict Liability Cases314
  • Q 19.4 : Are expert witnesses required to prove defects in strict product liability cases?314
    • : Manufacturing Defects314
    • Q 19.4.1 : What issues arise with experts in a manufacturing defect case?314
    • : Design Defects315
    • Q 19.4.2 : What are the issues for experts in a design defect case?315
    • Q 19.4.3 : Must the expert demonstrate an alternative design?317
    • : Warning Defects317
    • Q 19.4.4 : What are the issues for experts in a failure-to-warn case?317
    • Q 19.4.5 : Is an expert always required to prove a failure-to-warn claim?318
    • Q 19.4.6 : What qualifies a warnings expert?318
    • Q 19.4.7 : Is an expert required to propose an alternative warning?318
  • : Experts in Negligence Claims319
  • Q 19.5 : Are experts required to prove fault in products liability negligence claims?319
  • : Strategies for Selecting the Expert320
  • Q 19.6 : What are some of the strategy considerations in the selection of products liability experts?320
Chapter 20: The Expert in Toxic Torts
  • : Causation Requirements in Toxic Tort Cases328
  • Q 20.1 : What are the requirements for establishing causation in toxic tort cases?328
    • Q 20.1.1 : What issues arise with causation alleged against multiple defendants?329
  • : Necessary Fields of Expertise329
  • Q 20.2 : What fields of expertise are typically needed in toxic tort cases?329
    • : Diagnosis of Disease330
    • Q 20.2.1 : Are expert witnesses needed for the diagnosis of plaintiff’s injury?330
    • : General Causation330
    • Q 20.2.2 : What types of expert witnesses are used to establish general causation?330
    • : Epidemiology330
    • Q 20.2.3 : What is the role of epidemiology in toxic tort cases?330
    • Q 20.2.4 : What types of epidemiological studies are useful in toxic torts?331
    • : Specific Causation331
    • Q 20.2.5 : What types of expert witnesses are used to establish specific causation?331
    • : Toxicology332
    • Q 20.2.6 : What is the role of toxicologists?332
    • Q 20.2.7 : What is the role of animal studies in toxic tort cases?332
    • Q 20.2.8 : What is the role of in vitro studies?333
    • Q 20.2.9 : May exposure levels be extrapolated from studies?333
    • : Industrial Hygiene333
    • Q 20.2.10 : What is the role of industrial hygienists?333
    • Q 20.2.11 : What is the importance of the industrial hygiene proof of exposure levels?334
  • : Strategies for the Toxic Tort Expert334
  • Q 20.3 : When should you get toxic tort expert witnesses involved in a case?334
  • Q 20.4 : How can the appropriate expert witnesses be located for your toxic tort cases?335
Chapter 21: The Expert in Trademark Infringement Cases
  • : Trademark Law—General342
  • Q 21.1 : What are the relevant legal principles of trademark infringement law?342
  • : When Is Expert Testimony Needed343
  • : Trademark Validity and Strength343
  • : Likelihood of Confusion345
  • Q 21.3 : Should expert testimony be used on the issue of likelihood of confusion?345
    • Q 21.3.1 : What factors are used in determining the issue of likelihood of confusion?346
    • Q 21.3.2 : When is expert testimony needed to support or reject a claim of likelihood of confusion?346
  • : Infringement Damages347
  • Q 21.4 : How should expert testimony be used to establish or refute a claim of trademark infringement damages?347
  • : Experts and Consumer Surveys348
  • Q 21.5 : How do experts use consumer surveys?348
    • : Defenses Against Use of Consumer Surveys349
    • Q 21.5.1 : What defenses are regularly raised against the use of consumer surveys in trademark cases?349
Chapter 22: The Expert in Copyright Infringement Cases
  • : Qualifications of Expert Witnesses in Copyright Cases362
  • Q 22.1 : What qualifications are required of expert witnesses testifying on a claim of copyright infringement?362
  • : Use of Expert Witness in Copyright Cases362
  • Q 22.2 : How are expert witnesses used to prove or refute a claim of copyright infringement?362
  • : Proving Infringement Damages365
  • Q 22.3 : How is expert testimony used to prove copyright infringement damages?365
Chapter 23: The Expert in Patent Infringement Cases
  • : Expert Testimony Areas374
  • : Claim Construction374
  • Q 23.1 : How is expert testimony used for claim construction?374
  • : Infringement/Non-Infringement376
  • Q 23.2 : How is expert testimony used to prove patent infringement/non-infringement?376
  • : Validity/Invalidity376
  • Q 23.3 : How is expert testimony used to prove patent validity/invalidity?376
  • : Damages378
  • Q 23.4 : How is expert testimony used to establish or refute a claim of patent infringement damages?378
Chapter 24: The Economic Damages Expert: Personal Injury
  • : Role of Expert on Personal Injury Cases388
  • Q 24.1 : What is the role of an economic expert in a personal injury case?388
  • : Economic Damages389
  • Q 24.2 : How important are economic damages?389
    • Q 24.2.1 : Do all economic losses require the use of an economic expert?389
  • : Recoverability390
  • Q 24.3 : What economic losses are recoverable?390
    • : Wrongful Death Cases390
    • Q 24.3.1 : How are economic losses different in a wrongful death case?390
    • : Consumption Deductions in Wrongful Death Cases391
    • Q 24.3.2 : What is consumption?391
  • : Economic Damages Discovery392
  • Q 24.4 : What information is needed in discovery to prepare for the issue of economic damages?392
  • : Deposition Issues393
  • Q 24.5 : What are the key issues in the plaintiff’s deposition?393
  • : Lost Income Versus Lost Earning Capacity393
  • Q 24.6 : How is lost income different from lost earning capacity?393
  • : Lost Household Services395
  • Q 24.7 : How do plaintiffs’ experts calculate lost household services?395
  • : Calculation Issues396
  • Q 24.8 : What other issues arise with assumptions used by personal injury economists?396
    • Q 24.8.1 : How should counsel deal with an expert using inadequate, inaccurate, or inapplicable information?396
    • Q 24.8.2 : Did the expert make any calculation errors?397
    • Q 24.8.3 : How can the expert’s assumption concerning life expectancy be challenged?397
  • : The Reduction to Present Value398
  • Q 24.9 : How are future economic damages reduced to present value?398
    • Q 24.9.1 : How can the assumptions used by the expert to calculate present value be challenged?398
Chapter 25: The Economic Damages Expert: Commercial Losses
  • : General404
  • Q 25.1 : What kinds of experts might be used on commercial losses?404
  • Q 25.2 : What kinds of cases involve commercial loss issues that experts might address?405
  • : Lost Profits405
  • Q 25.3 : Are certain types of damages common in commercial loss cases?405
    • Q 25.3.1 : What are lost profits?406
    • Q 25.3.2 : How do experts generally measure lost profits?406
    • Q 25.3.3 : What are common problems with expert testimony about lost profits?406
  • : Damages in Securities Cases408
  • Q 25.4 : What types of commercial loss issues might an expert address in securities cases?408
    • Q 25.4.1 : What are some problems affecting expert testimony about securities damages testimony?409
  • : Antitrust Damages409
  • Q 25.5 : What types of commercial loss issues might an expert address in antitrust cases?409
    • Q 25.5.1 : What are potential problems with expert testimony about antitrust damages?411
  • : Contract Damages411
  • Q 25.6 : What types of commercial loss issues might an expert address in breach of contract cases?411
    • Q 25.6.1 : What are potential problems with expert testimony about contract damages?412
  • : Implied Warranty Damages413
  • Q 25.7 : What types of commercial loss issues might an expert address in breach of warranty cases?413
    • Q 25.7.1 : What are potential problems with expert damages testimony in implied warranty cases?413
  • : Intellectual Property Damages414
  • Q 25.8 : What types of commercial loss issues might an expert address in patent cases?414
  • Q 25.9 : What types of commercial loss issues might an expert address in trademark and copyright cases?415
  • Q 25.10 : What types of commercial loss issues might an expert address in trade secret cases?416
    • Q 25.10.1 : What are potential problems with expert damages testimony in trade secret cases?416
Chapter 26: The Economic Damages Expert: Business Valuation
  • : General428
  • Q 26.1 : What kinds of cases require business valuation expertise?428
  • : Qualifications of the Valuation Expert429
  • Q 26.2 : What are the qualifications for a business valuation expert?429
    • Q 26.2.1 : Must the expert have experience or knowledge of the field or industry being evaluated?430
  • : Valuation Standards430
  • Q 26.3 : What standards apply to business valuations?430
  • : Valuation Methodologies431
  • Q 26.4 : What methodologies are used by business valuation experts?431
    • Q 26.4.1 : Is the use of any particular method ever required?433
    • Q 26.4.2 : Do courts favor certain valuation methodologies?433
    • Q 26.4.3 : Is the “Rule of Thumb” approach acceptable?433
    • Q 26.4.4 : What issues arise with the selection of discount rates?433
  • : Valuation Assumptions434
  • : Discount Factors434
  • Q 26.5 : What discount factors can be considered?434
  • : Premium Factors434
  • Q 26.6 : What premium factors can be considered?434
  • : Assumption Issues435
  • Q 26.7 : What issues arise with the expert’s selection of assumptions regarding business performance?435
  • : Data Development436
  • Q 26.8 : Must the expert develop data independently or can he rely upon data provided by the client or counsel?436
    • Q 26.8.1 : Is information provided by counsel to the expert discoverable?436
Chapter 27: The Economic Damages Expert: Property Valuation
  • : General Principles442
  • Q 27.1 : What are some of the general principles and considerations for valuation and appraisal experts?442
    • Q 27.1.1 : What is a valuation or an appraisal?441
    • Q 27.1.2 : What kinds of property may be the subjects of a “valuation” or an “appraisal”?442
    • Q 27.1.3 : What occasions can give rise to a need for a valuation?443
  • : Expert Qualifications443
  • Q 27.2 : What are the qualifications needed for a property appraiser?443
    • Q 27.2.1 : Who can provide an opinion of value?443
    • Q 27.2.2 : What are appropriate areas of inquiry when assessing qualifications of property appraisers?444
    • Q 27.2.3 : What professional memberships and designations may bear upon an appraiser’s qualifications?445
    • Q 27.2.4 : Does the appraisal profession, apart from voluntary professional organizations, have professional standards of competency?446
    • Q 27.2.5 : What governmental certification or licensure should be considered?447
    • Q 27.2.6 : Apart from professional qualifications, what other selection criteria are there for an appraisal or valuation expert?448
  • : Valuation Gatekeeping Standards448
  • Q 27.3 : What rules, other than qualification as an expert, apply to the admissibility of valuation expert opinions?448
  • : Valuation Methodologies451
  • Q 27.4 : How is the valuation process conducted?451
    • Q 27.4.1 : What are the basic steps in a valuation of real property?451
    • Q 27.4.2 : What is meant by “highest and best use” of the real property?451
  • Q 27.5 : What methodologies may be used in a real property valuation?451
    • Q 27.5.1 : What is the comparable sales method of valuation?452
    • Q 27.5.2 : What is the cost method of valuation?452
    • Q 27.5.3 : What is the income method of valuation?453
    • Q 27.5.4 : Are there other valuation methodologies?453
  • : Valuation Reports454
  • Q 27.6 : What is required for a valuation report?454
    • Q 27.6.1 : What is the purpose of the valuation report?454
    • Q 27.6.2 : Are there industry standards for the valuation report?454
    • Q 27.6.3 : What is the effect on admissibility if the appraisal does not conform with USPAP?457
  • : Appraisal Reviews458
  • Q 27.7 : What is an Appraisal Review?458
  • Q 27.8 : Is compliance with USPAP required for non–real estate appraisals?457
  • 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?458
Chapter 28: Forensic Experts in Criminal Trials
  • : Forensic Science468
  • Q 28.1 : What is forensic science and who are forensic experts?468
    • Q 28.1.1 : What subjects are regularly addressed by forensic experts?468
    • Q 28.1.2 : What emerging areas of forensic science are finding their way into criminal courtrooms?469
  • : Need for Forensic Experts470
  • Q 28.2 : Is a forensic expert even necessary in your case?470
    • Q 28.2.1 : What is the “CSI effect”?471
    • Q 28.2.2 : Is your proposed witness really a forensic expert?472
    • Q 28.2.3 : Can the existence of a confession taint forensic analysis?472
    • Q 28.2.4 : How should experts communicate the accuracy of their findings?473
  • : Qualifications of a Forensic Expert473
  • Q 28.3 : What factors should be considered in choosing a forensic expert?473
    • Q 28.3.1 : Can hiring the wrong forensic expert constitute ineffective assistance of counsel?475
  • : Forensic Expert Gatekeeping476
  • Q 28.4 : What steps can be taken to have an opposing expert excluded?476
  • Q 28.5 : How should trial strategy change when a forensic expert is scheduled to testify?477
  • : Constitutional Issues479
  • Q 28.6 : What constitutional issues do forensic experts present?479
    • Q 28.6.1 : Does the government’s reliance on information procured by a non-testifying expert violate the Confrontation Clause?479
    • Q 28.6.2 : Does an indigent defendant have a constitutional right to a publicly funded forensic expert?480
    • Q 28.6.3 : How can lawyers become more familiar with the bedrock subjects of forensic science?481
Chapter 29: The Expert in Fire Cases
  • : General487
  • Q 29.1 : What types of cases require expert testimony relating to the cause and origin of fires?487
  • : Fire Investigation Experts487
  • Q 29.2 : What kinds of experts typically are involved in litigation involving fires?487
  • : Investigation Methodologies488
  • Q 29.3 : What does “origin and cause” mean, and what is a fire investigation?488
  • : The Leading Standard—NFPA 921489
  • Q 29.4 : What is the “gold standard” for measuring a fire expert’s methodology?489
    • : Elements of the Standard490
    • Q 29.4.1 : In general terms, what are the elements of the NFPA 921 methodology?490
    • : Relationship to Daubert Gatekeeping491
    • Q 29.4.2 : Does the NFPA 921 methodology comport with Daubert gatekeeping standards?491
    • : Hypothesis Testing491
    • Q 29.4.3 : Must the expert actually test her hypothesis?491
    • Q 29.4.4 : Must the expert rule out other potential causes of the fire?492
  • : Expert Qualifications and Experience493
  • Q 29.5 : What are some of the formal qualifications one should expect in a fire expert?493
  • Q 29.6 : What are some of the practical experiences that one should look for in a fire expert?493
    • Q 29.6.1 : To qualify, must the expert have knowledge or experience with the product or fire initiator at issue?494
Chapter 30: The Expert in Defamation Cases
  • : Defamation Law Defined502
  • Q chap30_30.1 : What is defamation?502
    • Q chap30_30.1.1 : What is a false and defamatory statement?502
    • Q chap30_30.1.2 : What is an unprivileged publication to a third party?503
    • Q chap30_30.1.3 : What are the levels of fault?503
    • Q chap30_30.1.4 : What makes a statement actionable?504
  • : Defamation Damages Available505
  • Q chap30_30.2 : If a statement qualifies as defamation, are presumed damages the only available damages?505
  • Q chap30_30.3 : Why does it matter whether damages are presumed?505
  • : Expert Witnesses in Proving Defamation506
  • Q chap30_30.4 : Can an expert witness testify to prove actual malice?506
    • Q chap30_30.4.1 : Can an expert help prove actual malice?507
  • : Expert Witnesses in Proving Truth or Falsity of Statements508
  • Q chap30_30.5 : If experts cannot testify as to actual malice, what aid can they give?508
    • Q chap30_30.5.1 : Can experts assist in proving that the statement was false?508
    • Q chap30_30.5.2 : Can an expert help the defendant prove truth?509
    • : Expert Witness in Proving Damages510
    • Q chap30_30.5.3 : Can an expert witness testify to prove special damages?510
    • Q chap30_30.5.4 : Can a defendant use an expert to rebut evidence of special damages?510
  • : Gatekeeping Concerns510
  • Q chap30_30.6 : What concerns exist when an expert testifies in a defamation case?510
Chapter 31: The Expert in Employment Cases
  • : In General516
  • Q 31.1 : How are experts used in employment cases?516
  • : Types of Plaintiffs’ Experts517
  • Q 31.2 : What types of experts might plaintiffs use in employment cases?517
    • : Social Science Experts517
    • Q 31.2.1 : What is the role of social science experts?517
    • : Statisticians517
    • Q 31.2.2 : What is the role of statisticians?517
    • : Health Professionals518
    • Q 31.2.3 : What is the role of physicians and other health professionals?518
    • : Economists519
    • Q 31.2.4 : What is the role of economists and related experts?519
    • : Ultimate Issues of Fact519
    • Q 31.2.5 : Can experts opine whether discrimination occurred under the facts of a particular case?519
    • : Objections by Defendant520
    • Q 31.2.6 : What objections might a defendant raise to a plaintiff’s liability expert?520
  • : Defense Experts521
  • Q 31.3 : How might experts be used by a defendant in an employment discrimination case?521
    • : Objections by Plaintiff522
    • Q 31.3.1 : What objections might a plaintiff raise to a defense expert?522
  • : Establishing Economic Damages522
  • Q 31.4 : How might experts be used to establish economic damages in an employment case?522
    • Q 31.4.1 : Is expert testimony required to establish economic damages in an employment case?524
  • : Establishing Emotional Distress Damages525
  • Q 31.5 : How might experts be used to establish mental anguish/emotional distress damages in an employment case?525
    • Q 31.5.1 : Is expert testimony required to establish mental anguish/emotional distress damages in an employment case?525
    • Q 31.5.2 : Can the plaintiff’s treating physician be called upon as an expert to support plaintiff’s claims for mental anguish/emotional distress?526
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

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