Winning with Expert Witnesses in Commercial Litigation
By Robert L. Dunn
- Chapter 1: Legal Principles
- Chapter 2: Qualification of Expert Witnesses
- Chapter 3: Foundation for Expert Testimony
- Chapter 4: The Expert Opinion
- Chapter 5: Direct Examination of Expert Witnesses
- Chapter 6: Cross-Examination of Expert Witnesses
- Chapter 7: Conflicts of Interest, Expert Misconduct, and Ethical Issues
- Chapter 8: Working with Experts
Chapter 1:
Legal Principles
A. An Overview of This Book and How to Use It
B. Federal Rules of Evidence
C. States Adopting the Federal Rules of Evidence
D. Courts’ Use of Authority from Other Jurisdictions
E. Legal Standard — Must Assist the Trier of Fact
1. Testimony Admissible
2. Testimony Not Admissible
F. Legal Standard — Beyond the Knowledge of the Trier of Fact
1. Testimony Admissible
2. Testimony Not Admissible
3. Relation to Assistance Standard
G. Ultimate Issue Rule Rejected
1. Testimony Admissible
2. Testimony Not Admissible
H. Ultimate Issue Rule Retained
I . Abuse of Discretion Review
1. Abuse of Discretion Defined
2. Manifest Error Test
Chapter 2:
Qualification of Expert Witnesses
A. Federal Rules of Evidence Standard
B. Case Law Standards
C. Tests Are Independent
D. How to Qualify an Expert
E. Court Determination of Expert Qualifications
F. Abuse of Discretion Review
G. Damages Experts
H. Valuation Experts — Real Property
I. Valuation Experts — Business or Other Property
J. Insurance Experts
K. Professional Standards Experts
L. Banking, Finance, and Securities Experts
M. Trademark, Patent, Trade Secret, and Antitrust Experts
N. Experts on Reasonable Fees
O. Experts on Causes of Fires and Property Damage
P. Other Experts
Q. Impact of Daubert
Chapter 3:
Foundation for Expert Testimony
A. Elements of Foundation
1. Federal Rules of Evidence Standard
2. Facts Observed by the Expert
3. Facts Made Known to the Expert
4. Literature Consulted by the Expert
5. Experiments and Tests
6. Statistics
7. Reports of Other Experts — Adequate Foundation
8. Reports of Other Experts — Inadequate Foundation
9. Opinions of Others
10. Hearsay Statements — Adequate Foundation
11. Hearsay Statements — Inadequate Foundation
12. Business Records
13. Information Surveys
B. Excluding Testimony for Inadequate Foundation
1. Trial Court Review of Scientific Expert Testimony Based on General Acceptance — The Frye Rule
2. States Adhering to the Frye Rule
3. Trial Court Review of Expert Testimony Based on Rule 702 — The Daubert Rule
4. States Adopting the Daubert Rule
5. Application of the Daubert Rule
6. Opinions Rejected as Implausible
7. Opinions Rejected as Unsupported by the Evidence
8. Opinions Accepted as Supported by the Evidence
9. Conclusions Only
Chapter 4:
The Expert Opinion
A. Standards for the Opinion
1. Reasonable Certainty Standard
2. Reasonable Probability Standard
3. Other Standards — Opinion Admissible
4. Other Standards — Opinion Not Admissible
B. Subjects of the Opinion
1. Causation — Testimony Admissible
2. Causation — Testimony Not Admissible
3. Standard of Care — Professional Negligence
4. Standard of Care — Other Cases
5. Covenant of Good Faith and Fair Dealing
6. Real Estate Valuation
7. Business and Securities Valuation
8. Other Valuation
9. Owner’s Opinion of Value
10. Lost Profits
11. Product Defect/ Failure
12. Credibility or Reliability of Witnesses
13. Handwriting
14. Rules and Regulations — Testimony Admissible
15. Rules and Regulations — Testimony Not Admissible
16. Meaning of Technical Terms
17. Interpretation of Contracts
18. Defamation
19. Questions or Conclusions of Law — Testimony Admissible
20. Questions or Conclusions of Law — Testimony Not Admissible
21. Foreign Law
22. Negligence — Testimony Admissible
23. Negligence — Testimony Not Admissible
24. Existence and Breach of Duty
25. Insurance
26. Banking, Finance, and Securities
27. Statistical Analysis
28. Other Subjects
Chapter 5:
Direct Examination of Expert Witnesses
A. Stating Facts on Which Opinion is Based
1. Testimony Admissible
2. Testimony Not Admissible
3. Testimony Required
B. Use of Charts and Graphs
C. Use of Literature, Reports, and Texts — In General
1. Evidence Admissible
2. Evidence Not Admissible
D. The Expert’s Report
E. The Hypothetical Question — In General
1. Hypothetical Question Not Required
2. Hypothetical Question Required
3. Proper Form of Hypothetical Question
4. Hypothetical Question Must Be Supported by the Evidence
5. Witness Need Not Be Familiar with the Facts Assumed
F. Expert Opinions Not Binding — In General
G. Expert Opinions Not Binding — Value
H. Outline for Direct Examination of an Expert Witness
I. Examples of Successful Direct Examination
J. Examples of Unsuccessful Direct Examination
Chapter 6:
Cross-Examination of Expert Witnesses
A. Role of Cross-Examination
B. Abuse of Discretion Review
C. The Expert’s Qualifications
D. Disciplinary Proceedings
E. License Revocation or Restrictions
F. Litigation against the Expert — Questions Excluded
G. Litigation against the Expert — Questions Permitted
H. Convictions of Crime
I. Bias or Prejudice — In General
1. The Expert’s Compensation — Direct Compensation
2. The Expert’s Compensation — Contingent Compensation
3. Previous Experience Testifying as an Expert
4. Professional Experts
J. The Expert’s Assumptions of Fact
K. Hypothetical Questions
L . Inconsistent Statements or Conduct
M . Former Testimony
N . Authoritative Treatises
O . Documents or Reports Relied on or Referred to by the Expert
P . Use of Entire Document or Publication
Q . Court-Appointed Experts
R . Outline for Cross-Examination of an Expert Witness
Chapter 7:
Conflicts of Interest, Expert Misconduct, and Ethical Issues
A. Disqualification of Experts — In General
1. Expert Disqualified
2. Expert Not Disqualified
B. Disqualification of Attorneys Employing Experts
C. Other Ethical Issues
D. Compelling Expert Testimony — Not Permitted
E. Compelling Expert Testimony — Permitted
F. Calling Another Party’s Expert
G . The Party or Its Employee as Expert
H . Expert Witness Negligence
Chapter 8:
Working with Experts
A. When to Start
B. Finding the Right Expert
C. Information Provided to the Expert
1. What to Provide
2. What Is Discoverable
D. Information Developed by the Expert
1. What Is Discoverable
2. The Expert’s Report
E. The Expert’s Deposition
F. Outline for the Adverse Expert’s Deposition
G. Disclosure of the Identity of the Expert
1. Undisclosed Expert Allowed
2. Undisclosed Expert Not Allowed
H. Disclosure of the Content of the Testimony
1. Undisclosed Testimony Allowed
2. Undisclosed Testimony Not Allowed
I. Use of the Expert as a Consultant
J. Special Issues for Defense Experts
K. The Expert’s Right to Fees