We caught up with\u00a0attorney Rich Matthews, a senior trial consultant and founder of Juryology<\/em>\u00a0who has conducted numerous CLEs on trial preparation and\u00a0<\/em>who helped us outline 6 essential tips so you won\u2019t be unprepared if your expert is facing a Daubert<\/i> hearing.<\/p>\n <\/p>\n A Daubert<\/i> hearing occurs when the validity of an expert\u2019s testimony<\/a> is challenged because of the underlying reasoning and methodology used to form their opinion. The Daubert <\/i>standard denotes a set of criteria articulated by the Supreme Court in Daubert<\/em> v. Merrell Dow Pharmaceuticals, Inc., \u00a0509 U.S. 579 (1993), that is relevant in determining the admissibility of such testimony. Prior to Daubert<\/i>, the prevailing standard for the admissibility of expert witness testimony in both state and federal jurisdictions was set forth in the case Frye v. U.S., 293 F. 1013, decided by the DC Circuit as far back as 1923. Under Frye<\/i>, the Circuit Court held that scientific evidence was admissible if based on a technique or methodology that was generally accepted by the scientific community, otherwise known as the Frye <\/i>\u201cgeneral-acceptance\u201d test. It should be noted that though some jurisdictions still use Frye<\/i>, the Supreme Court\u2019s decisions in both Daubert<\/i>\u00a0and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999) definitively set the standard for determining the admissibility of expert witness testimony. The Court in these cases articulated guidelines for such testimony to pass muster under FRE 702. When a Daubert\u00a0<\/i>challenge<\/a> is raised, it means the validity and reliability of your expert\u2019s testimony is being challenged and it will help to keep the following tips in mind when preparing for a Daubert\u00a0<\/i>hearing.<\/p>\n Opposing a Daubert<\/i> challenge can seem incredibly daunting if preparation begins only from the moment that the challenge is raised. After weeks of preparation, a last minute Daubert\u00a0<\/i>challenge seeks to directly discredit the entirety of an expert\u2019s opinion, attacking the very methodology it relies on. However…<\/p>\n To finish reading this article<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"![\"Rich](\"https:\/\/www.theexpertinstitute.com\/wp-content\/uploads\/2016\/03\/Rich-Matthews-1251.png\")
<\/a><\/p>\nWhat is a Daubert<\/i> challenge and what does it mean for your expert?<\/h2>\n
1.) Beat a Daubert<\/em> challenge before it\u2019s raised<\/h2>\n
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<\/a>A Daubert<\/em> challenge is one of the strongest legal mechanisms opposing counsel can use to discredit the validity of your expert\u2019s testimony, and possibly have it excluded altogether. Thus, when it comes to\u00a0Daubert<\/em> challenges, the best defense is a good offense. This means that when choosing your expert, keep in mind the potential for a Daubert<\/em> challenge<\/a> from the very beginning. The best way to do this is to look for expert witnesses whose work will best fit the requirements that are laid out as the \u201cDaubert <\/i>standard.\u201d The Supreme Court in Daubert\u00a0<\/i>emphasized a trial judge\u2019s duty to act as a \u201cgatekeeper,\u201d and view evidence under stricter scrutiny to ensure it meets the requirements of FRE 702. A recent example of this \u2013 as Rich Matthews points out \u2013 is when a federal judge in Chicago recently discredited expert testimony about pinpointing an individual\u2019s location using data analysis from cell phone towers. \u00a0The Court in Daubert <\/i>listed 4 points of consideration to prevent unreliable or otherwise \u201cjunk\u00a0science\u201d from being heard as evidence in an expert\u2019s substantive testimony. These include: 1) testing; 2) peer review; 3) rates of error; and 4) acceptance within the specific scientific community where the methodology is employed. Though experts<\/a> are familiar with Daubert<\/i> and the related criteria, it never hurts to review these points with your expert from the beginning and discuss that any expert opinion should be prepared with Daubert<\/em> in mind. Ironing out these issues early in the selection or preparation stages is the best assurance for making sure your expert survives a Daubert<\/em> challenge, if not avoiding one altogether.<\/p>\n2.) Address all parts of a Daubert<\/em> challenge<\/h2>\n
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One of the keys to surviving a Daubert<\/em> challenge<\/a> is thoroughness in the argument opposing the challenge. Make certain that every single question presented by the challenge is fully addressed and answered. This means including all documents, additional studies, articles, and any other relevant and credible material that support your expert\u2019s position. The crux of a Daubert<\/i> motion is a challenge to your expert\u2019s methodology or reasoning, so failing to properly address these contentions and counter them will be extremely detrimental for the admissibility of your expert\u2019s testimony. Not all judges allow a full-blown Daubert<\/em> challenge: the hearing may not encompass a comprehensive oration by either counselor and will largely be an issue of judicial review and discretion, so in some cases your documentary responses may have to stand on their own. The first major step in preparing is to anticipate the grounds for any challenges. For example, if there are competing methodologies in a particular field and your expert has chosen one over the other, there is a stronger possibility a Daubert<\/em> challenge may be raised. \u00a0The next major step is to communicate with your expert. Attorney Rich Matthews suggests sitting down with your expert and asking your witness to explain his or her methodology to you and why it was the best choice over others for the specific facts of your case. \u201cThe most important thing is that the expert\u2019s explanation is interesting, relatable, and understandable. Regardless of whether it is in front of a judge or jury, when it comes to expert witnesses, the best teacher always wins\u201d says Matthews.<\/p>\n3.) Get the Court on board<\/h2>\n
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<\/a>Remember that Daubert<\/i> hearings are always outside the presence of the jury, which means that the issue of admissibility of expert testimony is matter of law, up to the judge. The attorney has to know his expert\u2019s credentials, the purpose of testing, the methodology, and the academic literature that supports these techniques. Most importantly, an attorney must then describe all of these aspects in a clear and concise way that a judge will understand. Moreover, the attorney has to become familiar with the expert\u2019s specialization and testimony to anticipate the points the Daubert<\/em> challenger will make, and have counterpoints to neutralize those arguments. Judges are very conscious of 1) judicial efficiency and 2) adhering to precedent. The methodology underlying the expert\u2019s opinion needs to be one that is largely accepted and relied upon by the relevant scientific community. This means that alternative or unconventional methodologies might be a detriment if they are framed in a way that does not highlight their reliability in the respective field.<\/p>\n4.) Make sure your expert\u2019s testimony remains within the scope of their specialty<\/h2>\n
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Given an expert\u2019s extensive background and knowledge about a particular subject, it can be tempting to opine on issues that are slightly outside the expert\u2019s actual specialization that forms the basis of the testimony at issue. When experts start giving an opinion in areas that may be in their general area of knowledge, but not the subject of their actual focus or specialization, this can trigger a Daubert<\/em> challenge<\/a>. The best way to avoid this is to make sure that the expert\u2019s report, opinion, and testimony are consistent and narrowly tailored and, most importantly, within the bounds the expert\u2019s unique specialization. A substantial step is to make sure your expert witness clearly understands the key facts that his\/her testimony is being used to prove or disprove. It is crucial to go over this with your expert when preparing for a Daubert\u00a0<\/i>hearing- giving an opinion about matters outside the expert\u2019s specialty are easy grounds to challenge the expert\u2019s qualifications.<\/p>\n5.) Take note of the time to respond to a Daubert<\/em> challenge<\/h2>\n
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Plaintiffs and defendants often base their entire cases on the reliable testimony of one or two expert witnesses<\/a>, whose inability to testify could be fatal to their entire case. When plaintiff\u2019s counsel has submitted all expert witness information to the court, including a copy of their expert\u2019s report and notes, it is highly improper for opposing counsel to wait to challenge the expert\u2019s capacity to testify on a substantive issue until the last minute. Depending on the jurisdiction and based on the governing rules, a court may deny or even dismiss theDaubert<\/i> challenge if it raised too close to trial, due to lack of timeliness. Under the federal rules, timeliness related to expert disclosures are governed by FRCP Rule 26 however many jurisdictions have their own local rules that prescribe time requirements for expert witness related matters, so be sure to check both.<\/p>\n6.) Remember that the Court is a gatekeeper<\/h2>\n
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In a Daubert <\/i>hearing, the role of the judge is limited to that of a gatekeeper, serving a 104(a) function under the FRE. This means the only issue the judge should be deciding is whether or not your expert\u2019s testimony meets the threshold for admissibility under FRE 702, guided by the tests articulated in Daubert<\/i>. In preparing for a Daubert <\/i>challenge<\/a>, be careful not to frame the issues as if the judge is ruling on the weight of the expert\u2019s testimony as to the merits of the case- that is purely an issue for the jury. As long as the expert, the expert\u2019s processes and credentials, and the basis of the expert\u2019s conclusions are sound, the expert should be able to testify, since the weight and persuasiveness of the evidence itself is determined by a jury.<\/p>\n