Expert Witness Testimony

Question 1

Forensic Definition

Answer 1

1: Relating to or denoting the application of scientific methods and techniques to the investigation of crime
2: Relating to cours of law

Question 2

Testifying Environment

Answer 2

• Hazardous, not for fain of heart
• need to understand subtleties
• Withstand attack of cross exam

Personal attributes: Intelligence, Creativity, Public presence, Speaking and teaching ability, Confidence

Question 3

Forensic and Litigation Career Notes

Answer 3

• Maintain genuine humility
• Steep learning curve
• Be aware of your own perception

Question 4

Sworn Testimony

Answer 4

Evidence given by a witness who has made a legally enforeceable commitment to tell the truth under threat of perjury

Question 5

Job of Expert

Answer 5

Objectively apply judgements and profesisonal expertise, develop supportable opinions of fact

Question 6

Job of Lawyer

Answer 6

Aggressively advance clients interest through legal argument

They distort to gain advantage

Question 7

Types of Clients

Answer 7

1. Attorney client
2. Ultimate client

Question 8

Role of arguments

Answer 8

Facts, assumptions, rationale, substatnive principles that the lawyer emphasizes the strenghts and minimizes the weakness.

A good lawyer will bring the weakness to light and explain why it is not relvent.

Question 9

Testimony parts

Answer 9

• Science - technical precision
• Art - strategies and tactics

Question 10

Expert Contribution

Answer 10

• Identify and understand substantive issue
• educate lawyer on technical aspects
• indentifying documents to be produced

Question 11

Trier of fact

(Try-Er)

Answer 11

The audience

Question 12

Damages

Answer 12

• Punitive damages are rare (punishment(
• Special damages - Objective measurable economic damages (lost profit, property loss)
• General damages - non-economic damages (pain and suffering , punitive)

Question 13

Expert Witness Notes

Answer 13

• Need to be intelligent public speaker
• Carefully thought out arguments and positions
• Someone is going to disagree
• Personal attacks to get under your skin
• Intellectual merit of your position
• Think like a lawyer

Question 14

Unwritten rule

Answer 14

Know what you dont know. Stay in your lane, just because you have an opinion does not mean you should testify to it.

Question 15

Tip 1

Answer 15

Your cleint’s lawyer is not your friend. They sill push your comfort zone and test you.

Question 16

Perception of Advocacy

Answer 16

A presumption of bias. Need to have candor and own uncertainty.

Question 17

Goal of expert

Answer 17

1. Make meaning
2. Create Context

Fact to inference to opinion (connected by assumptions)

Question 18

Audience

Answer 18

Important to understand who you are talking to. It is insulting to dumb things town to a sophisticated trier of fact. Make them want to choose your opinion. Substance - be accurate Presentation - be likable

Question 19

Litigation date

Answer 19

Need 2 lawyers, 2 clients, judicial officer, and handful of experts

Question 20

Litigation profit

Answer 20

Mostly generated by litigation inefficiency and delay.

Question 21

The business of expert witnessing

Answer 21

• Services to the public
• tribunal = court of law
• Civil disputes
• Criminal disputes
• Litigation os hostile and uncomfortable

Question 22

Significance of Folkes v. Chadd

Answer 22

Created the expert witness

Question 23

Gatekeeping Responsibility

Answer 23

Judges have the responsibility to exclude unreliable expert testimony

Question 24

Gatekeeping Hurdle

Daubert Challenge

Answer 24

Challenges the admissability of expert witness testimony
1. Qualifications
2. Sufficiency of underlying data
3. Reliability of methodology (More important)
4. Relevance of expert opinion (More important)

Question 25

Prima Facie

Answer 25

Prima facie is a Latin expression meaning at first sight or based on first impression.

Question 26

Unclean hands

Answer 26

Unclean hands is an equitable defense much like fraud. The defense applies to bar an equitable claim no matter the claim’s merits when “the plaintiff has engaged in some manner of unscrupulous conduct, overreaching, or trickery that would be ‘condemned by honest and reasonable men

Question 27

unjust enrichment

Answer 27

In Florida, a claim for unjust enrichment requires a showing that:

The plaintiff has conferred a benefit on the defendant;
The defendant has knowledge of the benefit;
The defendant has accepted or retained the benefit; and
The circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair market value for it.

Question 28

Breach of Contract

Answer 28

First, a contract must exist. Second, a breach of contract must occur. Finally, there must be damages as a result of the breach. Note, the second element, the actual breach by one party, is only one part of the legal claim for breach.

Question 29

Valid Contract

Answer 29

1. Offer
2. Acceptance
3. Consideration
4. Sufficient specification if the essential terms.

Must have “A meeting of the minds”

Question 30

Preponderance Of Evidence

Answer 30

To prove an element by a preponderance of the evidence simply means to prove that something is more likely than not. In other words, in light of the evidence and the law, do you believe that each element of his/her [claim/counterclaim] is more likely true than not?

Question 31

Chancery

Answer 31

Relates to a court of equity.

Question 32

Fair Value Measurements

Choosing Markets

Answer 32

Go with principal market. Principal market has the greatest activity. When there is none, choose most advantageous market by comparing net prices. Net price is quote - trans cost. QUOTE is used to measure