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

2. The Path to the Courthouse
Disclosures
Depositions
Motions In Limine

3. No Surprises
Rule 26
Rule 37

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

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

6. 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)

7. 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.

8. 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).

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

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

11. 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

12. 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)

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

14. 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.

15. 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).

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

17. 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

18. 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)

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

20. 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.

21. 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)