![]() Communicating with Your Expert Witnessĭo: Make sure your expert witness is aware of the discovery rules applicable to your communications A better approach if caught up against a deadline is to ask opposing counsel to stipulate to a brief extension of the disclosure date or, if necessary, move to extend the disclosure date pursuant to CCP section 2034.230(b). Among other things, a code compliant disclosure in this situation will require that the attorney falsely aver under oath that the expert has agreed to testify at trial. Pressed against a deadline, attorneys will sometimes formally disclose an expert they have not yet retained. One final comment on last minute expert retentions. And everything will be rushed, raising the risk that the expert’s work product will be marred with mistakes, which will substantially undercut her credibility at trial. If the record is voluminous, your expert likely will not have time to review and absorb all relevant background materials. Because fact discovery has closed, you will have no opportunity to request any additional documents or data that the expert needs to formulate her opinions. And you probably won’t find out you have the wrong expert until disclosures have already been made, significantly limiting your ability to fix the mistake.Įven if you luck into the right expert witness, last minute retentions are still particularly likely to go wrong. But “any” expert may turn out be the wrong expert. The clock is ticking, desperation reigns, and the mission objective of picking the “right” expert is quickly jettisoned in favor of picking any expert. Waiting until right before expert disclosures are due to find an expert is akin to waiting until Christmas Eve to do your shopping. ![]() It will also allow you to make a change if it turns out you picked the wrong expert.ĭo not: Wait until expert disclosures are due to start looking for an expert witness The luxury of time will allow you to pick the right expert and make full use of her expertise to build your case. By the same token, do not withhold from discovery materials and data that your expert will rely upon to form her opinions, at the risk of having those opinions excluded at trial. Require that your adversary produce electronic data in a format that your expert can work with. Remember that in this age of e-discovery, format matters. Ask her what documents and information she needs to formulate her opinion(s), and enlist her assistance in drafting discovery requests. In these cases, failure to timely retain and prepare a qualified expert could cost you the case as early as summary judgment. Similarly, in cases which involve specialized standard of care – such as attorney or medical malpractice claims – expert testimony will be required to sustain the plaintiff’s burden of proof. For example, if your case will turn on a forensic accounting, retaining a qualified forensic accountant should be your very first order of business. This is especially true where expert testimony will be central to the case. Therefore, the sooner you involve your expert in the case, and start taking advantage of her expertise, the better. Expert Witness Selectionĭo: Start thinking about experts at the very beginning of the caseĪ good expert witness can do much more than just offer an opinion at trial – she can literally help you build a winning case. This article focuses on the critical predicates to a successful presentation at trial – namely, expert witness retention and discovery. ![]() ![]() But the successful examination of an expert witness at trial (whether on direct or cross) represents the culmination of a long process which can – and in most cases should – start at the very inception of your case. If you plan to testify as a forensic expert witness, ensure you are prepared if you are requested to testify in one of the mentioned hearings.Expert testimony can make or break your case. The hearings also enable the court to consider the expert witness’s qualifications and ability to communicate effectively. The Frye standard is used in federal courts and many state courts.ĭaubert and Frye hearings are important to expert witness testimony because they allow the court to weed out unreliable expert testimony. The Frye standard was created in 1923 by the US Supreme Court in the case Frye v. The Frye standard is a set of guidelines used to determine the admissibility of scientific evidence. The Daubert standard is used in federal courts and many state courts.Ī Frye hearing is a legal proceeding in which the admissibility of scientific evidence is determined. The Daubert standard was created in 1993 by the US Supreme Court in the case Daubert v. The Daubert standard is a set of guidelines used to determine expert testimony’s admissibility. A Daubert hearing is a legal proceeding in which the admissibility of expert testimony is determined. ![]()
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