Expert Witnesses

Question 1

Give six differences between lay and expert witnesses.

Answer 1

1. Expert witnesses may rely upon facts or data that are themselves inadmissible.
2. Expert witnesses can testify about the ultimate issue in the case.
3. Expert witnesses can testify as to their opinions without first testifying about underlying facts or data.
4. Expert witnesses can speculate.
5. Expert witnesses can testify to hearsay.
6. Expert witnesses can testify to hearsay-within-hearsay.

Question 2

What are two important things to know about consulting experts (vis-a-vis testifying experts)?

Answer 2

1. A testifying expert can rely on a consulting expert.
2. A consulting expert’s work product and communications are NOT discoverable.

Question 3

What is an important thing to know about testifying experts (vis-a-vis consulting experts)?

Answer 3

Once they’re designated, ALL of their work product and communications are discoverable - even communications with the attorney.

Question 4

What should you always consider doing with an expert witness, on both direct and cross?

Answer 4

Take them on voir dire.

Question 5

What are the 4 Daubert factors?

Answer 5

1. Empirical testing
2. Subject to peer review and publication
3. Known or potential error rate
4. Degree to which the theory and technique is generally accepted by a relevant scientific community

Question 6

What is the holding of Kumho Tire?

Answer 6

Daubert applies to engineers and other experts who are not scientists.