Archive for June, 2011

Tailor-Made Search for the Right Expert

Saturday, June 25th, 2011

There is no shortage of commercial services that offer to locate the “right” expert for your case. While these types of services (which typically charge a fee to either you or your expert) can be a valuable resource, you should consider other ways to locate the right expert for your case. Consider these options the next time you need to find an expert:

* Reported Cases – often this can lead to an expert with the most relevant experience for your particular case

* Experts Presenting at Seminars – this is a great way to “audition” your potential expert, since you can see how your expert may “perform,” and you can also ask questions

* Review Prior Testimony on – reading a potential expert’s prior testimony in similar cases is critical

While all of these methods require a little more work on your part, they can help you end up with the right expert for your case.

Basic Objections to Expert Testimony

Sunday, June 19th, 2011

Here are the most common objections to expert testimony that every lawyer should know and understand.

• The particular field is not a proper subject of expert testimony;
• The purported expert testimony is not relevant in that it will not make a fact of consequence to this lawsuit any more or less probable than it would be without the testimony;
• There is no adequate showing that the expert testimony is the product of reliable facts or data (or is the product of reliable principles and methods);
• The is no adequate showing that the witness has applied reliable principles and methods of the field of expertise to the facts of this case;
• The purported expert testimony is unfairly prejudicial and its probative value is substantially outweighed by the danger that this unfair prejudice will unduly influence the trier of fact;
• There are insufficient underlying facts or data upon which the expert could legitimately base an opinion;
• The expert opinion based his opinion on inadmissible facts or data, e.g., inadmissible hearsay, that is not of a type reasonably relied upon by experts in the particular field in forming opinions;
• Expert testimony concerning the otherwise inadmissible facts or data upon which the expert bases his opinion should not be allowed in evidence before the jury because the danger that the inadmissible facts or data will be used for a purpose other than explanation or support for the expert’s opinion outweighs their value as explanation and support.
• The purported expert is not qualified by knowledge, skill, experience, training, or education in the particular field of science, technical, or other specialized knowledge;
• There is insufficient proof that the technique employed by the expert qualifies as reliable scientific, technical or other specialized evidence; and
• The testimony will not assist the trier of fact to understand the evidence or to determine a fact in issue.

Future posts will address each of these objections in more detail.

Using the Non-Testifying Expert

Tuesday, June 7th, 2011

Most of us think that experts are mainly utilized for live testimony at trial or deposition. However, non-testifying (or consultative) experts may also be employed in a case for a variety of purposes.

Expert Selection – Using an expert to vet a potential expert you are considering hiring is an excellent practice, assuming that the first expert you hire is impartial (i.e., not influenced by his or her potential future hiring).

Review of Publications – While most attorneys are generally familiar with the titles of prominent technical publications, an expert can tell whether a particular publication is “real” as well as its relative professional significance.

Review of Professional Credentials – Similar to the review publications listed on a particular opposing expert’s CV, a hired expert can “translate” for the attorney the meaning of other resume and/or CV items (e.g., the strength of a particular academic program, the professional perception of a particular conference the expert claims to have attended).

Role Playing — This is particularly useful, if the expert you hire has previously testified as an expert against the expert your opponent plans to use at trial.
Aside from the above uses of an expert, under what circumstances might one use a non-testifying expert? What if your expert simply is not comfortable with the pressures associated with testifying? What if your expert’s rates for live testimony (as opposed to consultation) are cost prohibitive? What if your expert’s availability prevents the expert from being available for trial? In any of these circumstances, use of a consultative expert may be the solution.