Any attorney who has worked with an expert witness in litigation knows that a Daubert challenge presents the frightening possibility that an expert witness’ testimony may be wholly excluded from trial. This can be devastating if not fatal to a case since, at its core, Daubert is a direct challenge to the methodology used by an expert to formulate their opinion. Despite the terror that a Daubert challenge can cause, proper preparation, along with the right strategy, can help attorneys overcome or avoid Daubert challenges altogether.
We caught up with attorney Rich Matthews, a senior trial consultant and founder of Juryology. He has conducted numerous CLEs on trial preparation and who helped us outline 6 essential tips so you won’t be unprepared if your expert is facing a Daubert hearing.
What is a Daubert challenge and what does it mean for your expert?
A Daubert hearing occurs when the validity of an expert’s testimony is challenged because of the underlying reasoning and methodology used to form their opinion. The Daubert standard denotes a set of criteria articulated by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), that is relevant in determining the admissibility of such testimony.
Prior to Daubert, the prevailing standard for the admissibility of expert witness testimony in both state and federal jurisdictions was set forth in the case Frye v. U.S., 293 F. 1013, decided by the DC Circuit as far back as 1923. Under Frye, the Circuit Court held that scientific evidence was admissible if based on a technique or methodology that was generally accepted by the scientific community; otherwise known as the Frye “general-acceptance” test.
It should be noted that though some jurisdictions still use Frye, the Supreme Court’s decisions in both Daubert and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999) definitively set the standard for determining the admissibility of expert witness testimony. The Court in these cases articulated guidelines for such testimony to pass muster under FRE 702. When a Daubert challenge is raised, it means the validity and reliability of your expert’s testimony is being challenged and it will help to keep the following tips in mind when preparing for a Daubert hearing.
1. Beat a Daubert challenge before it’s raised
A Daubert challenge is one of the strongest legal mechanisms opposing counsel can use to discredit the validity of your expert’s testimony, and possibly have it excluded altogether. Thus, when it comes to Daubert challenges, the best defense is a good offense. This means that when choosing your expert, keep in mind the potential for a Daubert challenge from the very beginning. The best way to do this is to look for expert witnesses whose work will best fit the requirements that are laid out as the “Daubert standard.”
The Supreme Court in Daubert emphasized a trial judge’s duty to act as a “gatekeeper,” and view evidence under stricter scrutiny to ensure it meets the requirements of FRE 702. A recent example of this – as Rich Matthews points out – is when a federal judge in Chicago recently discredited expert testimony about pinpointing an individual’s location using data analysis from cell phone towers.
The Court in Daubert listed 4 points of consideration to prevent unreliable or otherwise “junk science” from being heard as evidence in an expert’s substantive testimony. These include: 1) testing; 2) peer review; 3) rates of error; and 4) acceptance within the specific scientific community where the methodology is employed. Though experts are familiar with Daubert and the related criteria, it never hurts to review these points with your expert from the beginning and discuss that any expert opinion should be prepared with Daubert in mind. Ironing out these issues early in the selection or preparation stages is the best assurance for making sure your expert survives a Daubert challenge; if not avoiding one altogether.
2. Address all parts of a Daubert challenge
One of the keys to surviving a Daubert challenge is thoroughness in the argument opposing the challenge. Make certain that every single question presented by the challenge is fully addressed and answered. This means including all documents, additional studies, articles, and any other relevant and credible material that support your expert’s position. The crux of a Daubert motion is a challenge to your expert’s methodology or reasoning. So failing to properly address these contentions and counter them will be extremely detrimental for the admissibility of your expert’s testimony. Not all judges allow a full-blown Daubert challenge. The hearing may not encompass a comprehensive oration by either counselor and will largely be an issue of judicial review and discretion; so in some cases your documentary responses may have to stand on their own.
The first major step in preparing is to anticipate the grounds for any challenges. For example, if there are competing methodologies in a particular field and your expert has chosen one over the other, there is a stronger possibility a Daubert challenge may be raised. The next major step is to communicate with your expert. Attorney Rich Matthews suggests sitting down with your expert and asking your witness to explain his or her methodology to you and why it was the best choice over others for the specific facts of your case. “The most important thing is that the expert’s explanation is interesting, relatable, and understandable. Regardless of whether it is in front of a judge or jury, when it comes to expert witnesses, the best teacher always wins” says Matthews.
3. Get the Court on board
Remember that Daubert hearings are always outside the presence of the jury. This means that the issue of admissibility of expert testimony is matter of law, up to the judge. The attorney has to know his expert’s credentials, the purpose of testing, the methodology, and the academic literature that supports these techniques. Most importantly, an attorney must then describe all of these aspects in a clear and concise way that a judge will understand.
Moreover, the attorney has to become familiar with the expert’s specialization and testimony to anticipate the points the Daubert challenger will make. As well as having counterpoints to neutralize those arguments. Judges are very conscious of 1) judicial efficiency and 2) adhering to precedent. The methodology underlying the expert’s opinion needs to be one that is largely accepted and relied upon by the relevant scientific community. This means that alternative or unconventional methodologies might be a detriment if they are framed in a way that does not highlight their reliability in the respective field.
4. Make sure your expert’s testimony remains within the scope of their specialty
Given an expert’s extensive background and knowledge about a particular subject, it can be tempting to opine on issues that are slightly outside the expert’s actual specialization that forms the basis of the testimony at issue. When experts start giving an opinion in areas that may be in their general area of knowledge, but not the subject of their actual focus or specialization, this can trigger a Daubert challenge.
The best way to avoid this is to make sure that the expert’s report, opinion, and testimony are consistent and narrowly tailored; and most importantly, within the bounds the expert’s unique specialization. A substantial step is to make sure your expert witness clearly understands the key facts that his/her testimony is being used to prove or disprove. It is crucial to go over this with your expert when preparing for a Daubert hearing; giving an opinion about matters outside the expert’s specialty are easy grounds to challenge the expert’s qualifications.
5. Take note of the time to respond to a Daubert challenge
Plaintiffs and defendants often base their entire cases on the reliable testimony of one or two expert witnesses. Their inability to testify could be fatal to their entire case. When plaintiff’s counsel has submitted all expert witness information to the court, including a copy of their expert’s report and notes, it is highly improper for opposing counsel to wait to challenge the expert’s capacity to testify on a substantive issue until the last minute. Depending on the jurisdiction and based on the governing rules, a court may deny or even dismiss the Daubert challenge if it raised too close to trial, due to lack of timeliness. Under the federal rules, timeliness related to expert disclosures are governed by FRCP Rule 26. However many jurisdictions have their own local rules that prescribe time requirements for expert witness related matters; so be sure to check both.
6. Remember that the Court is a gatekeeper
In a Daubert hearing, the role of the judge is limited to that of a gatekeeper, serving a 104(a) function under the FRE. This means the only issue the judge should be deciding is whether or not your expert’s testimony meets the threshold for admissibility under FRE 702; guided by the tests articulated in Daubert. In preparing for a Daubert challenge, be careful not to frame the issues as if the judge is ruling on the weight of the expert’s testimony as to the merits of the case. That is purely an issue for the jury. As long as the expert, the expert’s processes and credentials, and the basis of the expert’s conclusions are sound, the expert should be able to testify; since the weight and persuasiveness of the evidence itself is determined by a jury.
Opposing a Daubert challenge can seem incredibly daunting if preparation begins only from the moment that the challenge is raised. After weeks of preparation, a last minute Daubert challenge seeks to directly discredit the entirety of an expert’s opinion. Thus attacking the very methodology it relies on. However many of these issues, concerns and limitations are mitigated if you begin to prepare for Daubert long before such a challenge arises; even when selecting and preparing your expert witness. Even when preparing for a Daubert hearing after learning of the challenge, follow these 6 tips to help give the judge a preview of your strong case and your worthy expert witness.