What is I-O?

How to Prepare for a Daubert/Kumho Challenge?

Since Daubert/Kumho, current guidance for the expert witness can be summarized in these words: (a) Be prepared to be challenged on your understanding of the scientific methodology in your field; (b) answer questions about whether the theory or technique you are describing has been subjected to peer review via publications; (c) make sure your reasoning is precise concerning the facts and methodically related to the issues at hand, without speculation; (d) remember that most experts are vulnerable in cross-examination because of lack of preparation; (e) expect to be cross-examined vigorously and even relentlessly because ours is an adversarial system; (f) be determined to present your testimony in clear, simple terms with consistency and lack of bias, with obvious sincerity and demonstration of careful consideration of the evidence; (g) remember that the expert will also be scrutinized as to the ability to communicate, demeanor, emotions, and body language, as well as careful consideration of the evidence.

More specifically, the witness providing scientific testimony should expect to be cross-examined precisely about (h) whether actual connection of validated research specifically applies to the facts of the case or the issues at hand; (i) whether the research was done prior to the case, that is, independently of the issues currently at stake; (j) whether the error rates of predictability are known or probable (that is, is it testable?); and (k) be prepared to make a thorough pre-trial report that will be submitted to judicial scrutiny. It is clear that the quality of the evidence is more important than ones credentials, although it should be clear that you possess genuine expertise. 

What Should be Included in the Experts Report?

In addition to the general considerations explained above, certain pieces of information can be specified to be included in the experts affidavit in order to make it reliable scientific knowledge under the Daubert/Kumho standards. Although these considerations may seem obvious, many experts who have failed to adequately respect and delineate these guidelines flopped or floundered under Daubert. The trial judge may exclude testimony before any presentation.

Therefore, it is important to include the following information in the expert affidavit: (a) State that the conclusion or opinion rendered is within a reasonable degree of medical or scientific certainty, (b) specifically state the conclusion of the independent research relied upon, (c) name the scientific scrutiny and peer review to which the studies or methodologies have been subjected, and (d) name the independent objective sources supporting the conclusion reached (Delany and Cusack, p.14).

As all of these factors illustrate, the Daubert/Kumho investigation is influenced not simply by the science at issue, but also by the appropriate presentation of that science to the Court, the ability to unpack it, to explain it in lay terms, and actual relevance to the facts of the case. 

Decision Tree for the Local Jurisdiction

Experts need to be fully informed not only of the facts of the case, but what is the law in the particular jurisdiction in which the case is to be tried. This is a decision tree. If it is federal, which is the circuit, and then which circuit cases have interpreted Daubert? In the earlier discussion it was seen that the Fifth Circuit Court and the Tenth had divergent interpretations of Daubert. If it is in the state courts, is one in a state that has the same rules as the federal rule? If yes, are there state decisions interpreting Daubert? If no, what is the rule guiding expert witness and scientific testimony in that jurisdiction? Experts are often not sufficiently informed or instructed by the trial attorney. Diverse interpretations in various jurisdictions can be expected to continue. The trial attorney should help prepare the expert for a Daubert/ Kumho type of challenge, as well as the type of evidence rules to be expected. Experts need also to be coached for the pretrial depositions, that is, does the attorney want the opposing party to be intimidated early by your testimony in hopes of obtaining an out-of-court settlement, or does he want them to be later surprised in court by the weight of your evidence? The usual guidelines for expert witness provide many suggestions for these kinds of decisions (Brodsky, 1991). 

Conclusion

Courts have worked long and hard to put a stop to the hired expert willing to give an opinion that supports one side of the case, with the juries left to pierce the pretentious pettifoggery proclaimed by several opposing experts. Questionable scientific methodologies have been used to satisfy the Frye rule and Rule of Evidence 702. The more troubling scientific techniques formerly admitted are now being found unreliable and therefore inadmissible. Expert testimony can now be examined on relevance and reliability. It is likely to be reviewed and challenged before the trial by the judiciary. Expert witnesses must now prove that theories relied upon have been (a) tested, (b) subjected to peer review and publication, (c) evaluated for error, (d) reasoned scientifically to the facts, and (e) held generally acceptable by the relevant scientific community. The testifying expert must provide evidence that all theories relied on meet the qualifications of science.

Those concerned about the trust we place in our court system and its effectiveness, as well as the reputation of our own discipline, can only applaud the decision to assess our science and bar the use of unsound testimony. We can be glad for sake of respect for facts and for justice that the courts have lost their absolute faith in science. Daubert/Kumho expands the likelihood that an experts testimony will receive careful judicial scrutiny. Actually, the reliability and relevance of the experts analysis and evaluation needs to be established long before the trial. Ultimately, Daubert/Kumho brings order out of chaos. Qualified experts will bring a renewed measure of objectivity and reason to the courtroom. The professional practitioner and the scientist welcome this change.

The judiciary, the scientist, and the professional play a role in ensuring that scientifically valid information is part of the judicial process. But the admissibility of expert witness testimony is clearly in the hands of the trial judges, not experts, not trial lawyers, not scholars. Training of judges in these matters is needed. As professionals we can applaud Daubert and its progeny because we want to do everything possible to ensure that information available to the legal system is reliable. We also will want our particular discipline to be well represented in determinations of justice. Expert witnesses from the various professions and scientific disciplines will conduct themselves in a manner consistent with professional ethics and responsibilities. This is an austere commitment for each discipline and to our system of justice. We have surveyed in this article what new focus that dedication might entail. Hopefully this will serve to raise consciousness to these new perspectives.

One last word: Agree to be an expert only when genuine expertise in the subject matter is already present. Expect close cross-examination on the quality of the evidence, perhaps even grueling challenge. The jury will also be assessing your professional credibility. To make these ideas practical for yourself: Create a moot court for yourself. Experiment with asking this question of yourself: How do you know? in four different ways, repeatedly, emphasizing in turn each of the four words.

The author can be reached at www.paschalbaute.com or e-mail Pbbaute @aol.com.

References:

Baute, Paschal. 2000. Is your expert witnessing prepared for a Daubert/Kumho challenge? The Forensic Examiner, Vol. 9, (3, 4, 5, 6).

Brodsky, Stanley L. 1991. Testifying in Court: Guidelines and maxims for the expert Witness, American Psychological Association.

Delany, John J. III, and Beth Anne Cusack, (1999, April 3), IX. Daubert and toxic tortshow to prepare a Daubert case. [Online] Available: www.cvcsc.com/daubert/htm; Connecticut Valley Claims Service Company, www.cvcsc.com/contact/contact.htm.

Daubert v. Merrell Dow Pharmaceuticals 509 U.S. 579 (1993).

Kumho Tire Co. v. Carmichael 526 U.S. 137 (1999).