Effective Expert Witnessing: Practices for the 21st Century

Effective Expert Witnessing: Practices for the 21st Century

Effective Expert Witnessing: Practices for the 21st Century

Effective Expert Witnessing: Practices for the 21st Century

Synopsis

Since the publication of the bestselling third edition, not only have changes occurred on how the Daubert decision has been applied, but the more recent Kumho ruling applies serious scrutiny to all professionals who claim to have expert opinions. In response, the fourth edition incorporates much more information on how to survive legal challenges to one's expert testimony. Because buyers of previous editions span every profession, this edition includes case studies and examples from many disciplines within and outside of the sciences. It features seven new chapters, including Winning Deposition Strategies with Respect to Daubert and Kumho and How to Take Advantage of High Technology in the Courtroom.

Excerpt

The judicial system is in a state of revolution and chaos with respect to expert witnessing. The Daubert guidelines for expert scientific testimony promulgated by the U.S. Supreme Court in 1993 are a significant part of litigation in federal court and in most state courts. The Kumho decision subsequently extended the guidelines to experts in all fields. Other Supreme Court and Federal Appeals Court decisions have further defined the limits and extent of the guidelines. Various State Appeals and Supreme Court decisions have included modifications and additions to the Daubert/Kumho guidelines.

All these actions have essentially produced trials within trials. An expert has to anticipate that the opposing council will file a motion to exclude her opinions based on nonadherence to the guidelines and that some form of a hearing may be held (depending on the judge) to qualify or exclude the expert. The judge must decide whether the expert has the proper credentials and whether the opinions are relevant and reliable. The superior advocate may win out over the best technical argument because the judge may have no way to objectively evaluate the scientific basis for the expert opinion. Confusion also results from trying to distill the difference between the methods used by the experts and the interpretation of facts that are inputs into the methodology. Where does methodology stop and interpretation of facts begin? While many a motion to exclude challenges both the method and the factual interpretation, a thoughtful reading of Daubert and subsequent legal precedents should limit judicial review to only the question of methodology.

The Fourth Edition represents a major departure from the previous editions. First, the Daubert/Kumho guidelines are not only explained in detail but also elaborated on through numerous references to interpretations by other commentators. Second, the book is extensively referenced to bring in a variety of opinions on the processes and procedures of experts. Third, the text was constructed in a more readable way, so that the newcomers to expert witnessing can more easily grasp the important concepts. Fourth, a CD video is enclosed to visually show how an expert functions in litigation. Vital information as to how to interact with attorneys, how to handle a deposition, and how to give testimony at trial are demonstrated in mock form. Also,

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