Effective Expert Testimony

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

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).