Inn of Court: Trial Practices Expert Witnesses Presented By: R. Bhandari, E. Fensterstock, R. Philp, P. Aminolroaya, and J. Spiegel

The Path to the Courthouse Disclosures Depositions Motions In Limine

No Surprises Rule 26 Rule 37

Surprises Allowed in Alabama State Court (1:29 – 1:30:50)

Rules Governing Experts Federal Rules of Evidence 702-705 Govern Use of Experts The Presumption is that Expert Testimony is Admissible Trial Courts are Reviewed for Abuse of Discretion

Requirements for Expert Testimony Testimony must be helpful Expert must be qualified The testimony must be reliable and fit the facts of the case Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)

Rule 702 Codifies Daubert (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Daubert Factor: Helpful The federal rules allow expert testimony if it is “helpful.” The old standard was “necessary.” Expert testimony is admissible for subjects that are beyond lay knowledge. Expert testimony is inadmissible for subjects within lay knowledge (i.e., common sense).

Daubert Factor: Qualified Qualification Can Be Established By One or More of the Following Bases (liberally construed): Knowledge Skill Experience Training Education

Voir Dire Mini-cross examination related SOLELY to Qualifications. Can be conducted outside the presence of a jury.

An Ineffective Voir Dire (1:41:35 -1:44:30) Key Points of Clip Consider conducting a voir dire outside the presence of a jury Qualifications can be established without formal education

Components of Direct Examination Introduction By Lawyer Qualifications Proffering the Witness as an Expert Opinion of the Expert Basis for the Opinion (e.g., methodology)

Rule 703 Experts can base opinions on facts without personal knowledge.

The Opinion and Its Basis Rule 704 – An Opinion is Not Objectionable Just Because it Embraces an Ultimate Issue Rule 705 – Give the opinion first. An opinion can be given without testifying to the underlying facts or data.

An Excellent Direct (1:44:30-1:48:20) Key Points Vinny knows how to elicit an opinion for maximum impact. Opinion comes first. Basis for the opinion comes afterwards. Compensation should be addressed (sometimes its money instead of kisses).

Goals of Cross-Examination Cast Doubt on Credibility Case Doubt on Conclusions Piggybacking

Credibility Can Be Attacked in Many Ways Prior Testimony Rejected Inconsistent Statements Errors in Calculations General Integrity Professional Assumptions Bias because of Compensation Offers the Same Opinion in Every Case

Prepare Your Witness for Every Kind of Attack Same Opinion Every Time (1:46:36-1:48:51) Integrity (1:56:15 – 1:58:25)

Cast Doubt on Conclusions Failed to: Consider Certain Facts Perform Certain Tests Was expert asked not to do certain things?

Piggybacking One of the most effective ways to use an opposing expert. Use them to substantiate part of your own case. They’ll never (almost) never agree with your conclusion but use the opposing expert to prove other parts of your case.

Get The Expert to Concede A Few Good Facts Attack Conclusion By Raising Possibility of Other Explanation (1:14:02 – 1:15:58) Piggyback All the Way Home (1:49:01 – 1:50:07)