NITA Publications

Effective Expert Testimony

If you are a litigator, then you understand that a well-received expert is a vital segment of your winning case. All trial lawyers confront many issues when dealing with experts, including skepticism from the court, a high cost for your client, and resentful jurors who fear the expert is arrogant. In this Second Edition, authors Paul Zwier and David Malone examine the rules of evidence and ethics that govern the relationship of experts to lawyers, experts to juries, and experts to courts all in a manner that resolves these issues.

Effective Expert Testimony now provides the litigator more guidance concerning what can be discovered pretrial including information selected by the attorney. Additionally, you will find information on case law, rules, and statutes that specify how the expert may communicate with the hiring attorney before submitting an opinion.

• >> TABLE OF CONTENTS
  Table of Contents
  
  Preface
  
  Chapter 1: Introduction: Some Reflection on Experts
  
  Chapter 2: Finding Experts
  Where to Find an Expert
  Where to Find an Outside Expert
  Maintaining Confidentiality
  Expert Fees
  
  Chapter 3: Caring for an Expert
  
  Chapter 4: Timelines for Working with Experts
  The Plaintiff's Expert Timeline
  The Defendant's Expert Timeline
  Report Requirement for All Experts
  Rebuttal Disclosure
  
  Chapter 5: Non-Deposition Discovery Against Experts
  What Should the Attorney Tell the Expert?
  Dealing with the Consulting Expert
  Consulting vs. Non-consulting
  Protective Orders
  Beauty Contests
  Communications with the Expert
  
  Chapter 6: Preparing to Depose the Expert
  Expert Discovery
  Location of the Deposition
  Preparing for the Deposition
  Brainstorming on Themes and Facts
  
  Chapter 7: Deposing the Expert: Strategies
  
  Chapter 8: Deposing and Defending the Expert: Tactics
  FRE 803(18): Learned Treatises as Non-Hearsay
  Expert Witness: Preparation
  
  Chapter 9: Direct Examination of Experts
  Analyzing Expert Testimony
  Preparing the Expert for Direct Examination
  Expert Direct Examinations
  Outline of Testimony
  Direct Examination of a Neurologist
  Direct Examination of Plaintiff's Damages Expert in Gender Discrimination Case
  
  Chapter 10: Experts and Exhibits
  Evidentiary Hurdles for Illustrative or Summary Exhibits
  Hearsay Hurdles for Exhibits
  Foundations for Specific Exhibits: Photographs
  The Role of the Pretrial Conference
  Staying Organized During the Pretrial
  Misleading Icons and Exhibits
  Opposing Graphic Evidence at the Pretrial Conference
  Handling Documents at Trial
  Choosing the Medium and the Occasion
  The Next Level of Persuasion with Exhibits
  
  Chapter 11: Cross-Examination of an Expert Witness: Control
  Form of Question
  Control Techniques for the "Run-On" Witness
  
  Chapter 12: Cross-Examination of an Expert Witness: Impeachment
  Impeachment with a Prior Inconsistent Statement
  Impeachments by Omission
  Using Learned Treatises under Cross-Examination
  Use the Expert's Report to Assert Control
  Cross on Financial or Other Bias
  Impeachment by Prior Bad Acts
  
  Chapter 13: Cross-Examination of an Expert Witness: Organizational Choices
  Putting It All Together
  Constructive Versus Destructive Cross-Examination
  Primacy Versus Recency
  Storytelling Versus Fact-Gathering
  Substance Versus Impeachment
  Applying Control Techniques to Cross-Examination of Experts
  Enlistment and Narrowing of Issues
  The Macro Versus Micro Cross-Examination
  Demystify the Dispute--Analogies
  Corralling the Expert
  Eighth Grade Science Norms
  Expert Testimony on Reconstruction and Recreations
  
  Chapter 14: Daubert Trilogy
  Daubert: The Gathering Clouds
  Daubert: The Supreme Court, Gatekeepers, and Expert Reliability
  Post-Daubert Issues
  Daubert: To Kumho and Beyond
  
  Chapter 15: Examining the Reliability of Expert Testimony
  Publication and Peer Critique
  Error Rate That Can Be or Is Known
  Acceptance in the Relevant Scientific Field
  Testability or Replicability
  Preparation or Creation for a Purpose Other Than Litigation
  Adequacy to Explain Important Empirical Data
  Basis in Quantitatively Sufficient Data
  Basis in Qualitatively Acceptable Data
  Methodological Consistency
  Consistency in This Application
  Recognition in a Body of Literature
  Adequacy of the Expert's Credentials
  Derivation from Mainstream Approaches
  
  Chapter 16: Conclusion
  
  Appendix A. Selected Federal Rules of Evidence
  
  Appendix B. Federal Rule of Civil Procedure 26
  
  Appendix C. Selected Supreme Court Cases
  Daubert v. Merrell Dow Pharmaceuticals, Inc.
  General Electric Co. v. Joiner
  Kumho Tire Company, Ltd. v. Carmichael
  
  Appendix D. Court of Appeals Cases
  
  Negligence Experts
  Boat Engine--Negligent Maintenance
  Correa v. Cruisers, A Division of KCS Int'l, Inc.
  Boat Safety: Holesapple v. Barrett
  Accident Reconstruction: Ford v. Nationwide Mutual Fire Ins. Co.
  Slip and Fall--Floor Wax: Saldana v. Kmart Corp.
  Slip and Fall--Cause of Fibromyalgia: Black v. Food Lion, Inc.
  Evidence of Marijuana Use Impairing Driving Ability: Bocanegra v. Vicmar Servs.
  Human Factors Expert Opinion: Mihailovich v. Laatsch
  
  Products Liability Experts
  Unsafe Design: Zaremba v. GMC
  Design Defect--"False Park" Case: Simmons v. Ford Motor Co.
  Causation: Amorgianos v. Amtrak
  Knowledge of Risks of Smoking: Prado Alvarez v. R.J. Reynolds Tobacco Co.
  Handrail Expert: Cipollone v. Yale Indus. Prods.
  Bottom Fire Pnuematic Nailer (And summarized all 8th Cir Cases to that point permitting and excluding Expert testimony.): Lauzon v. Senco Prods.
  
  Medical Experts
  Medical Opinion--Silicone Breast Implants: Allison v. McGhan Med. Corp.
  Medical Opinion--Effect of 4 Day Failure to Treat Excluded: McDowell v. Brown
  Medical Opinion--Cerebral Palsy Caused by Birth: Tanner v. Westbrook
  Treating Physician Opinion--Development of Future Injury: Ballance v. Wal-Mart Stores, Inc.
  
  Damages Experts
  Expert Reliance on Client Provided Data Without Verification: Cooper v. Travelers Indem. Co.
  Reliance on Faulty Sales Data: Irvine v. Murad Skin Research Lab.
  Predicting Loss Without Using Regression Analysis: Zenith Elecs. Corp. v. WH-TV Broad. Corp.
  Interest Rate: United States v. Allegheny Ludlum Corp.
  Evidence of Monopoly Effect on Competitor: SMS Sys. Maintenance Servs. v. Digital Equip. Corp.
  Going Concern Valuation: Coastal Fuels, Inc. v. Caribbean Petroleum Corp.
  Cause of Business Failure: Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc.
  
  Employment Case Experts
  Employment Discrimination--Economic Damages: Cummings v. Std. Register Co.
  Relevance of Statistical Evidence of Disparity of Race in Firm: Obrey v. Johnson
  Opinion of Discrimination: Munoz v. Orr
  
  Criminal Case Experts
  Handwriting: United States v. Mooney
  Voice Recognition: United States v. Salimonu
  Expert and Lay Opinion on the Nature of Drug Market: United States v. Ayala-Pizarro
  Drug Importation Schemes: United States v. Lopez-Lopez
  Fire Expert--Preserving Appeal on the Basis of Daubert: United States v. Diaz
  
  October 21, 2010

• >> AUTHORS
  
  
  • David M. Malone
    
    
    • David M. Malone is a trial attorney, author, consultant, and teacher who has worked with the National Institute for Trial Advocacy (NITA) since 1979. He is the founding principal of Trial Run Inc., a litigation training and consulting firm. Mr. Malone practiced as a federal prosecutor for seventeen years before entering private practice for thirteen years, concentrating on complex civil litigation. He has been an adjunct professor in advocacy at the University of Virginia School of Law and at the George Washington University School of Law. He is a graduate of the University of Notre Dame (B.A.) and the University of Virginia School of Law (J.D.). Mr. Malone is the author NITA's deposition text, The Effective Deposition; of the companion pocket-sized book, entitled, Deposition Rules; and of NITA's Effective Expert Testimony. Through Trial Run Inc., he has written and published a number of other litigation "rule" books, including Daubert Rules and Effective Deposition Defense Rules. Until recently, he was the program director and team leader for the Washington Advanced Program, which he started, and he has taught in hundreds of other NITA programs. He is a past recipient of NITA's Robert E. Oliphant Award.

  
  

  • Paul J. Zwier
    
    
    • Paul J. Zwier is a professor at Emory University School of Law, where he directs the trial advocacy and litigation skills programs and teaches torts and advanced negotiation, mediation, and international dispute resolution seminars. He has taught courses in advocacy, litigation skills, and ADR at more than 250 law firms and legal organizations in the U.S., and internationally in Africa, Canada, China, Great Britain, Guam, and Saipan. He also consults on ADR strategies as well as case theory and presentation in trial cases. Professor Zwier directs the Appellate Court Advocacy program as well as the Advocacy Teacher Training/Lawyer without Borders program. Prior to joining the faculty at Emory, he was a professor of law and director of the Center for Advocacy and Dispute Resolution at the University of Tennessee Law School and a professor of law at the University of Richmond School of Law. He has been a visiting professor of law at both William and Mary Law School and Temple University School of Law. He is the former director of Public Education for the National Institute for Trial Advocacy (NITA).